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THE  REVIEW  OF  AMERICAN 

COLONIAL   LEGISLATION    BY   THE 

KING  IN  COUNCIL 


BY 


ELMER  BEECHER  RUSSELL,  A   M 


SUBMITTED   IN   PARTIAL   FULFILMENT   OF  THE   REQUrREMENTS 

FOR    THE    DEGREE   OF    DOCTOR   OF    PHILOSOPHY 

IN   THE 

Faculty  of  Political  Science 
Columbia  University 


NEW  YOiOC 
1915 


^--1 


n 


THE  REVIEW  OF  AMERICAN 

COLONIAL   LEGISLATION    BY   THE 

KING  IN  COUNCIL 


BY 

ELMER  BEECHER  RUSSELL,  A.  M. 


SUBMITTED    IN    PARTIAL    FULFILMENT   OF    I'HE    REQUIREMENTS 

FOR    THE    DEGREE   OF    DOCTOR    OF    PHILOSOPHY 

IN  THE 

Faculty  of  Political  Soence 
Columbia  University 


NEW  YORK 
I915 


Copyright,  191 5 

BY 

ELMER  BEECHER  RUSSELL 


(>«■ 


^  PREFACE 

The  power  exercised  by  the  English  Privy  Council,  of 
annulling  the  enactments  of  the  royal  colonies,  afforded  the 
home  government  an  important  instrument  of  administra- 
tive control^  It  constituted  a  necessary  check  upon  the  only 
branch  of  the  colonial  governments  which  was  responsive 
to  popular  sentiment,  and  gave  the  English  executive  a  final 
word  in  regard  to  the  minutest  details  of  local  administra- 
tion in  the  dominions.  Its  importance  both  to  the  mother 
country  and  to  the  colonies,  together  with  the  fact  that  no 
detailed  study  of  its  operation  has  heretofore  appeared, 
constitute  the  justification  for  this  work. 

The  author  realizes  keenly  the  limitations  of  this  mono- 
graph. It  is  primarily  a  study  of  the  action  taken  upon 
colonial  legislation  by  the  English  government;  and  only 
incidentally  does  it  consider  the  purpose  and  contents  of  the 
enactments  which  met  with  favor  at  the  Privy  Council,  or 
which  provoked  the  royal  veto.  In  its  preparation  the 
writer  has  confined  himself  very  largely  to  the  use  of  mate- 
rials which  present  the  English  pointy  of  view  in  regard  to 
colonial  administration.  A  careful  and  systematic  examina- 
tion of  the  colonial  laws,  together  with  a  study  of  the  legis- 
lative journals  and  other  sources  which  reflect  the  aims  of 
the  assemblies,  and  reveal  some  of  the  forces  at  work 
therein,  would  shed  additional  light  upon  the  whole  subject. 
and  might  modify  to  a  considerable  degree  the  conclusions 
reached  as  to  the  effectiveness  of  the  Council's  work  of 
review.  This  study,  as  its  title  indicates,  is  also  confined 
largely  to  the  continental  colonies  which  afterward  became 
part  of  the  American  union.  A  well-rounded  treatment  of 
423]  5 


6  PREFACE  [424 

the  government's  attitude  toward  all  the  colonial  assemblies 
and  its  action  upon  their  legislation  would  necessitate  an 
examination  of  extensive  manuscript  material  relating  to 
the  island  colonies  which  the  author  lacked  the  time  to  un- 
dertake. A  study  thus  broadened  in  scope  would  probably 
afford  little  additional  light  upon  either  the  procedure  or 
the  policy  of  the  government  in  legislative  review.  But  it 
is  essential  to  any  just  and  definitive  conclusion  as  to  the  re- 
sults and  effectiveness  with  which  that  policy  was  pursued. 

This  work  is  based  primarily  upon  manuscript  material 
in  the  Public  Record^  Office,.  XcQndon.  Some  eighty-odd 
volumes  of  the  Board  of  Trade  Journal  give  a  fairly  de- 
tailed account  of  the  Board's  participation  in  colonial  ad- 
ministration prior  to  1776.  This  has  been  supplemented  by 
the  Original  Papers  and  the  Entry  Books  which  are  listed 
at  the  Record  Office  and  referred  to  in  this  volume  under 
the  call  number  "CO/5".  The  former  include  papers  ad- 
dressed to  the  Board  by  governors  and  other  colonial  offi- 
cials, law  reports  and  copies  of  orders  in  council.  The 
latter  comprise  letters  from  the  Board  to  the  governors, 
commissions  and  instructions,  Board  "  Representations " 
and  other  papers  which  were  copied  for  convenient  refer- 
ence by  the  clerks  of  the  Board  into  large  folios.  Exten- 
sive use  has  also  been  made  of  the  printed  material  in  the 
Acts  of  the  Privy  Council,  Colonial  Series,  and  the  volumes 
of  the  Calendar  of  State  Papers,  Colonial  Series,  which  re- 
late to  America  and  the  West  Indies. 

The  kindness  and  courtesy  of  the  officials  and  attendants 
at  the  Record  Office  is  gratefully  acknowledged.  This  work 
was  undertaken  at  the  suggestion  of  Professor  Herbert  L. 
Osgood,  of  Columbia  University,  and  has  been  carried  to 
completion  under  his  guidance  and  helpful  criticism.  To 
him  the  author's  most  sincere  thanks  are  due. 

Elmer  B.  Russell. 
New  York  City,  February  19,  191 5. 


TABLE  OF  CONTENTS 


CHAPTER  I 
Introductory— The  Review  of  Colonial  Legislation  Prior  to  1696 

rACB 

Introductory  statement 15-16 

— Absence  of  legislative  review  prior  to  1660 16 

Charter  provisions  regarding  colonial  enactments 16-I7 

A  precedent  for  review  in  the  proprietary  governments 18 

The  gradual  realization  of  the  necessity  for  review 18 

Why  assumed  by  the  Privy  Council        19 

Appointment  of  the  committee  of  the  Council,  July  4,  1660 19 

Appomtment  of  subordinate  councils  of  trade  and  plantations 19-31 

Composition  and  activity,  1660- 1674 19 

Activity  of  the  committee  in  1665 ai 

Review  by  the  committee  of  the  Council  after  1675  •   •    •    •  • 21-38 

Importance  and  composition 21 

vReview  largely  confined  to  acts  from  the  Island  Colonies   .    .  .    .  _    aa 

Action  upon  laws  from  Barbadoes aa-Jjj 

Laws  to  be  of  indefinite  duration    ......  aj 

Questions  concerning  the  royal  power  in  legislative  review     ...      aj 

Action  upon  laws  of  Jamaica 23-^9 

Attempt  to  deprive  the  assembly  of  initiative 34 

A  body  of  laws  prepared  by  the  attorney  general 34 

The  assembly  refuses  to  accept  laws  drafted  in  England 35 

A  compromise  effected 87 

A  permanent  revenue  act  secured 28 

Action  upon  laws  of  Virginia •  29-31 

Disallowance  of  three  laws 29 

Revision  of  Virginia  laws  in  England  abandoned 30 

The  assembly  accepU  three  laws  prepared  in  England    .  .31 

The  permanent  revenue  act  disallowed  in  part     ...  3' 

Action  upon  laws  of  New  Hampshire .  3' 

Action  upon  laws  of  New  York ,  .   .    .   .  3a 

A  "  charter  of  liberties "  annulled   •        S3 

Action  upon  laws  of  Maryland         3J 

425]  7 


8  CONTENTS  [426 


PAGE 


// 


Action  upon  laws  of  Massachusetts 33-36 

Provisions  of  the  new  charter  regarding  legislative  review  ....  34 
Review  of  laws  passed  under  the  charter  of  1692 35 

Laws  of  Maryland  and  the  Carolinas  exempt  from  review 36 

Action  upon  laws  of  Pennsylvania 37-38 

Provisions  of  the  charter  regarding  review 37 

Governor  Fletcher  abrogates  the  early  laws 37 

Review  of  laws  passed  in  1693 • 3^ 

Work  of  the  attorney  and  solicitor  generals  in  legislative  review 38 

Other  officials  consulted 40 

The  government's  occasional  disregard  for  its  own  concessions 4^-43 

Repeal  by  proclamation  of  the  governor,  in  Virginia 41 

Laws,  the  operation  of  which  was  "  suspended  "... 42 

Laws  remaining  in  force  pending  repeal  or  amendment 43 

Tolerance  of  the  assemblies  after  1660 43 

CHAPTER  II 
The  Procedure  of  the  English  Government  in  Legislative  Review 

The  work  of  the  Board  of  Trade  in  legislative  review 44-81 

Importance  of  the  Board  of  Trade 44 

Formation  of  the  Board  of  Trade 45 

Composition  of  the  Board  of  Trade 46 

Important  periods  in  the  history  of  the  Board  of  Trade 46-48 

The  Board  prior  to  17 14 46 

The  Board  under  Whig  domination 47 

A  revival  of  prestige  in  1752 47 

Loss  of  power  in  1766 47 

Powers  delegated  to  the  Board ...      48 

Consideration  of  Massachusetts  laws  in  1696 49 

Procedure  observed  at  the  Board  in  legislative  review 49-58 

Receipt  of  laws  and  reference  to  the  law  office 49 

Consideration  of  laws  at  the  Board 50 

Petitions  regarding  legislation 50 

Hearings  upon  petitions 51 

Board  reports  and  representations 52 

Changes  in  the  procedure  of  review  after  17 18 53 

Receipt  of  orders  in  council 54 

The  practice  of  allowing  acts  to  "lie  by  probationary  " 54-5 8 

A  means  of  securing  amendment  or  repeal  from  the  assembly.       55 

A  delay  pending  the  receipt  of  information 55 

A  precautionary  measure 56 

The  proportion  of  acts  left  probationary      57 


427]  CONTENTS 


9 


PAOK 


Reports  upon  legislation  rendered  to  Parliament rg 

Sources  of  counsel  and  information  available  to  the  Board 59-81 

The  law  officers  of  the  crown 59-69 

The  attorney  and  solicitor  generals     .    .        ^9 

Lack  of  promptness  in  rendering  reports 60 

Proportion  of  laws  referred  to  the  attorney  and  solicitor  .    .  62 

Questions  propounded  to  the  attorney  and  solicitor  .  .    .  63,  64 

Attendance  at  the  Board 6c 

The  King's  counsel 6c 

Attendence  at  the  Board 55 

Nature  and  importance  of  the  law  reports 67-69 

The  lords  of  the  treasury  and  commissioners  of  the  customs 69-73 

The  auditor  general -2 

References  by  the  treasury  to  the  Board y2 

Importance  of  reports  from  the  treasury 73 

The  Bishop  of  London j^ 

The  post  master  general ye 

The  admiralty   .    .  .        ...      75 

The  English  merchants 7e 

Attendance  at  the  Board y6 

Influence  at  the  Board j6 

The  colonial  agents  .    .        yg 

Their  duties  and  influence 79 

Letters  from  the  colonial  governors 80 

Conclusion gi 

The  work  of  the  Committee  of  the  Council  in  legislative  review  .    .    .  82-86 

The  part  taken  by  the  Privy  Council  prior  to  1 710 82 

The  increasing  activity  of  the  committee  after  17 10 83 

Effect  upon  the  prestige  and  influence  of  ihe  Board     ....       84 
Hearings  before  the  committee 85 

CHAPTER  III 
The  Procedure  of  the  Government  in  Legislative  Review  (Continued) 

Anticipatory  control  of  legislation  by  instructions  to  governors 87 

Instructions  regarding  enactment  and  transmission  .        87 

Instructions  forbidding  assent  to  legislation 88 

Prohibitions  conditioned  upon  the  omission  of  a  suspending  ciaust- .  89 

Effectiveness  of  instructions  forbidding  assent 89 

Mandatory  instructions 90 

Laws  drafted  at  the  Board  for  enactment  by  the  assemblies 91 

Tentative  drafts  submitted  to  the  Board  by  assemblies 92 

The  codification  of  colonial  laws 93 


lO  CONTENTS  [428 

PAGE 

The  revision  of  colonial  laws 93-96 

The  Maryland  revision  of  1699 93 

The  Virginia  revision  of  1704  . 94 

The  Virginia  revision  of  1748 95 

Refusal  of  the  assembly  to  revise  the  Massachusetts  laws     ....  96 

The  instruction  withdrawn 96 

Review  of  legislation  from  the  proprietory  colonies 97-100 

Action  upon  laws  of  Carolina 97 

Influence  of  the  proprietors  at  the  Board 98 

Action  upon  proposed  laws  of  Georgia 98 

Power  and  influence  of  the  Pennsylvania  proprietors 99 

Effect  of  the  charter  limitations  of  Massachusetts  and  Pennsylvania  ....  100 

Review  of  laws  from  Connecticut  and  Rhode  Island 102 

Laws  annulled  in  connection  with  the  appellate  jurisdiction  of  the  Privy 

Council 104 

Procedure  in  the  review  of  private  laws io6 

Restrictions  upon  enactment  and  transmission 106 

Safeguards  imposed  upon  their  review ...  107 

CHAPTER    IV 

The  Policy  of  the  Government  in  Legislative  Review — Trade 
Shipping  and  Finance 

Introductory  statement 109 

The  theory  of  econ  omic  restrictions  imposed no 

Attitude  toward  colonial  imposts in 

Attitude  toward  export  duties 112 

Attitude  toward  duties  upon  the  importation  of  slaves      112 

Attitude  toward  duties  upon  the  importation  of  convicts 114 

Prohibition  of  duties  favorable  to  local  residents 115 

Laws  regulating  the  Indian  trade 116 

Laws  regulating  the  cultivation  and  shipment  of  tobacco 117 

Prohibition  of  laws  encouraging  colonial  manufactures 11. s 

Frequently  emphasized  at  the  Board 119 

The  establishment  of  ports  and  towns 119 

Attitude  toward  the  emission  of  paper  money    , 120-125 

General  restrictions  imposed 121 

Legal  tender  provisions 122 

The  act  of  Parliament,  1764 123 

Attitude  of  the  merchants  toward  paper  money 124 

Attitude  toward  debtor  legislation 125-134 

The  bankruptcy  acts  of  Massachu  setts  and  Virginia 125 

Acts  relieving  prisoners  for  debt 126 


429]  CONTENTS  II 

PAGB 

Discriminations  against  English  ci editors 127 

Stay  laws  and  exemptions  from  arrest 1 28 

Laws  granting  priority  to  local  creditors 1 29 

Laws  conferring  excessive  powers  upon  inferior  courts 130 

Laws  unjust  to  debtors  or  creditors 131 

Prohibition  of  attachments  upon  the  property  of  absentees 132 

The  act  of  Parliament,  1731 133 

Laws  declaring  slaves  personal  property 134 

Laws  regulating  the  exchange  upon  coins 136 

CHAPTER  V 

The  Policy  of  the  British  Government  in  Legislative  Review  : 
Insistence  upon  Conformity  to  the  Law  of  England 

Introductory  statement 139 

Enactment  of  English  statutes  discouraged 139 

Attitude  toward  laws  technically  defective 141- 147 

Cause  of  technical  imperfections 141 

Laws  vaguely  or  loosely  worded      142 

Laws  deemed  unnecessary  or  trivial  ....        143 

Laws  imposing  excessive  penalties 144 

Laws  retrospective  in  their  operation 144 

Laws  dealing  with  unrelated  subjects 145 

Laws  enacted  in  an  irregular  manner 145 

Acts  upon  subjects  without  the  purview  of  the  colonial  assemblies     .    .  146 
Attitude  toward  acts  conflicting  with  a  more  fundamental  law    ....     147-150 

Laws  in  conflict  with  instructions  to  the  governor 147 

Laws  in  conflict  with  a  provincial  charter 148 

Laws  in  conflict  with  an  act  of  Parliament 149 

Acts  at  variance  with  the  common  law 149 

Attitude  toward  infringements  upon  individual  liberty 1 50 

Laws  permitting  conviction  without  due  process 15 1 

Laws  conferring  excessive  powers  upon  local  magistrates    ....  151 
Attitude  toward  infringements  upon  rights  to  private  property    ....     152-161 

Provisions  deemed  confiscatory 15* 

Laws  regarding  the  conveyance  of  lands   ..•• 153 

Restrictions  imposed 154 

Legislative  encroachments  upon  the  domain  of  the  courts   ....  155 

Laws  barring  entails 156 

Laws  regarding  the  proof  of  wills 157 

Laws  regarding  the  settlement  of  intestate  estates 15* 

Laws  regarding  the  property  rights  of  married  women 160 


12  CONTENTS  [430 

PACK 

Attitude  toward  deviations  from  English  judicial  procedure 161-168 

Rules  in  regard  to  the  use  of  affirmations 162 

Restrictions  upon  the  use  of  affidavits 162 

The  establishment  of  equity  courts 164 

Discouragement  of  needless  litigation 164 

Laws  conferring  excessive  jurisdiction  upon  incompetent  courts      ...  165 

Laws  conferring  powers  upon  local  magistrates 165 

Laws  impowering  judges  to  try  cases  without  juries 166 

Laws  limiting  appeals  to  superior  courts     .    ,    .        167 

Attitude  toward  laws  granting  naturalization 168 

The  act  of  Parliament,  1740 169 

Laws  granting  aliens  titles  to  lands 170 

Attitude  toward  private  acts  of  divorce 171 

CHAPTER  VI 

The  Policy  of  The  British  Government  in  Legislative  Review  : 
Attitude  toward  Encroachments  upon  the  Prerogative 

Introductory  statement 174 

Laws  detrimental  to  the  material  interests  of  the  crown 174-176 

Acts  regulating  the  collection  of  quit  rents 175 

Restrictions  upon  the  recovery  of  forfeitures      175 

Laws  detrimental  to  the  dignity  or  privilege  of  the  crown 176-193 

Encroachments  upon  the  domain  of  the  executive 176-180 

The  right  of  visitation 177 

The  power  to  initiate  fairs  and  markets 177 

Laws  granting  the  privilege  of  incorporation 178 

Commissions  for  the  custody  of  lunatics 179 

Encroachments  upon  the  power  to  reprieve  and  pardon 179 

Laws  injurious  to  patent  officers 180 

Laws  imposing  limitations  or  penalties  upon  customs  officers  ...     180 

The  regulation  of  fees 182 

Infringements  upon  the  power  to  call  and  regulate  assemblies    .    .     183-188 

Biennial  and  triennial  laws 184 

Qualifications  for  members  and  their  electors 185 

Laws  granting  representation  to  local  communities 185 

Instructions  to  Governor  Shirley  of  Massachusetts 186 

Disputes   regarding   representation  in   New  Hampshire   and 

North  Carolina 187 

The  general  instruction  of  1767 188 

Delegation  of  the  power  to  establish  courts 189 

Attempts  to  limit  the  crown's  discretion  in  appointing  judges  .    .    .     189 
Desire  that  commissions  run  "during  good  behavior"     ...     190 


43 1  ]  CONTENTS  13 

PAGE 

Limitations  upon  appeals  to  the  king  in  Council 190 

Legislative  usurpation  upon  the  domain  of  the  courts 191 

Attempts  to  enlarge  the  legislative  control  over  appropriations    ....  192 

Comment  of  the  Board  upon  legislative  encroachments  in  Pa.  .  192 

CHAPTER  VII 

The  Policy  of  the  British  Government  in  Legislative  Review: 
Attitude  Toward  Laws  Deemed  Inexpedient 

Introductory  statement 194 

Attitude  toward  laws  authorizing  lotteries 194 

Laws  reducing  the  rate  of  interest 195 

Attitude  toward  grants  of  land 195 

The  Government  a  patron  of  religion 196-199 

Attitude  toward  the  establishment  of  the  Anglican  Church     ....  196 

Tolerance  of  dissenters 196 

Acts  of  Maryland  injurious  to  Catholics 197 

A  Virginia  law  against  Quakers  disallowed,  17 18 198 

Protection  of  the  minority  in  Massachusetts 198 

Tolerance  discouraged  in  two  instances  ....  199 

The  government  an  arbiter  in  inter-colonial  disputes 199 

Boundary  dispute  between  New  York  and  New  Jersey 199 

Dispute  between  citizens  of  South  Carolina  and  Georgia     ....  200 

Attitude  toward  discriminatory  duties         aoo 

Conflicting  regulations  imposed  upon  Indian  traders aol ' 

CHAPTER  VIII 
The  Results  of  Legislative  Review 

Introductory  statement 203 

Obstacles  to  the  efifectiveness  of  review 203 

The  results  obtained  by  legislative  review 204 

Results  from  the  economic  policy  of  the  crown 204 

Conformity  to  the  law  of  England 205 

Defence  of  the  prerogative 205 

Colonial  evasion  of  English  requirements 206 

Failure  to  transmit  laws 206 

Delay  in  the  submission  of  Pennsylvania  laws 207 

Unrelated  subjects  within  a  single  enactment 207 

Temporary  laws 208 

Not  an  eflfective  means  of  evasion 210 

The  re-enactment  of  laws  disallowed 210 

Failure  to  observe  orders  in  council 212 


14  CONTENTS  [432 

PAGE 

The  effectiveness  of  instructions  to  governors 213 

The  necessity  of  instructions 213 

Instructions  requiring  the  insertion  of  a  suspending  clause 214 

Suspending  clauses  disregarded  after  insertion 215 

"Why  governors  failed  to  obey  instructions 215 

Criticisms  of  the  procedure  in  review 216 

Lack  of  centralization 216 

Delays  resulting  from  the  complex  machinery  of  review      ....  216 

Attitude  of  administrative  bodies  toward  colonial  affairs 218 

Expense  involved  by  the  process  of  review 218 

The  proportion  of  laws  disallowed 221 

Inconvenience  or  hardships  resulting  from  dissallowance 222 

Inconvenience  from  uncertainty  and  delay 222 

Delay  caused  by  the  insertion  of  suspending  clauses 223 

Attitude  toward  laws  of  domestic  import    .    ,    ,    .    ,    • 224 

Needless  interference  in  local  affairs 225 

Conflict  between  colonial  development  and  imperial  policy 225 

The  nature  of  disallowance  by  the  Privy  Council     ....    • 227 

Its  importance  as  a  precedent 227 


CHAPTER  I 

Introductory;  The  Review  of  Colonial  Legislation 
Prior  to  1696 

The  English  government  in  its  royal  colonies  exercised 
what  was  virtually  a  double  check  upon  the  activities  and 
enactments  of  the  colonial  legislatures.  By  instructions  to 
the  governor  it  insured  the  veto  of  anticipated  legislation 
of  objectionable  character,  and  more  or  less  effectively 
curbed  his  conduct  as  a  constituent  part  of  the  law-making 
body.  And  furthermore  it  required  that  all  enactments  be 
transmitted  to  England,  where  they  were  subject  to  exam- 
ination by  the  Privy  Council  and  its  subordinate  bodies, 
and  if  deemed  objectionable  to  a  summary  disallowance. 
The  eixercise  of  this  power  imposed  upon  a  government,  far 
removed  and  much  occupied  with  larger  concerns,  a  neces- 
sity of  grappling  with  numerous  problems,  which  although 
of  domestic  import,  were  nevertheless  of  immediate  and 
far-reaching  importance  to  the  colonial  inhabitants.  More- 
over, it  often  confronted  the  EngHsh  authorities  with  the 
delicate  and  dangerous  necessity  of  finding  a  basis  of  con- 
ciliation between  the  political  ideas  and  economic  interests 
of  the  Empire,  and  the  apparently  diverging  ideas  and  in- 
terests of  the  several  colonies  which  were  struggling  sep- 
arately towards  a  political  self-consciousness.  It  is,  there- 
fore, significant  that  when  the  Continental  Congress  came 
to  cast  about  for  grievances  which  would  justify  the  im- 
pending separation  from  the  mother  country,  they  made  the 
alleged  abuse  of  this  control  over  the  colonial  assemblies 
433]  ^5 


l6  REVIEW  OF  COLONIAL  LEGISLATION  [434 

the  basis  of  eight  counts  in  the  indictment  summoning  their 
tyrannical  sovereign  to  the  bar  of  a  candid  world. 

It  is  the  purpose  of  this  study  to  trace  from  its  beginnings 
the  exercise  of  the  government's  power  of  reviewing  colo- 
nial legislation;  to  examine  the  administrative  bodies  of  the 
English  government  engaged  in  the  task,  their  composition, 
manner  of  procedure,  and  attitude  toward  colonial  prob- 
lems; to  find,  if  possible,  what  the  government  sought  to 
accomplish  by  the  confirmation  or  disallowance  of  laws ;  to 
form  some  estimate  of  its  success  or  failure  in  achieving 
these  aims ;  to  consider  whether  the  restrictions  imposed  by 
this  system  of  legislative  review  were  in  any  real  sense  a 
hardship  and  a  grievance  to  the  colonists;  and,  finally,  to 
inquire  whether  it  may  be  said  to  have  prepared  the  way 
for  the  judicial  annulment  of  laws  subsequently  practised 
under  the  constitutions  of  the  several  states  and  of  the 
United  States. 

No  regular  and  systematic  review  of  colonial  legislation 
was  undertaken  by  the  Privy  Council  or  Parliament,  or  by 
their  committees,  prior  to  the  Restoration  of  1660.  Nor 
does  it  appear  that  any  colonial  law  was  confirmed  or  dis- 
allowed during  this  period.  The  Virginia  charter  of  1606 
assumed  that  "  Laws,  Ordinances  and  Instructions  "  should 
originate  in  the  crown  and  pass  under  the  privy  seal  of 
England;  while  that  of  1609  conferred  upon  a  council  the 
power  to  make  "  all  Manner  of  Orders,  Directions,  Instruc- 
tions, Forms  and  Ceremonies  of  Government  and  Magis- 
tracy," and  imposed  no  restriction  upon  the  exercise  of  it.^ 
Beginning  with  the  third  Virginia  charter  of  1612,  how- 
ever, grants  conferring  the  law-making  power  invariably 
stipulated  that  acts  should  be  not  contrary  nor  repugnant 
to  the  laws  and  statutes  of  England.     This  document  im- 

*  Macdonald,  Select  Charters,  pp.  5,  i4- 


435]  INTRODUCTORY  17 

powered  the  treasurer  and  the  company  in  the  four  general 
assemblies  held  each  year,  "  to  ordain  and  make  such  Laws 
and  Ordinances,  for  the  good  and  welfare  of  the  said  Plan- 
tation, as  to  them  from  time  to  time,  shall  be  thought  requi- 
site and  meet:  So  always,  as  the  same  be  not  contrary  to 
the  Laws  and  Statutes  of  this  our  Realm  of  England."  ^ 
A  similar  proviso  appears  in  the  patent  of  the  Council  of 
New  England,  issued  in  1620,  and  in  the  first  charter  of 
Massachusetts,  issued  in  1628-9.^  The  Maryland  charter 
of  1632,  which  provided  for  a  colonial  assembly,  stipulated 
not  only  that  laws  should  be  not  repugnant  and  that  they 
be  "(so  far  as  conveniently  may  be)  agreeable"  to  those 
of  England,  but  also  that  they  be  "consonant  to  reason,"  ^ 
— a  restriction  which  appears  in  many  subsequent  grants  of 
importance/  The  Privy  Council  decided  in  1629  that  laws 
"  ordained  "  by  the  "  grand  assembly  "  of  Virginia  "  must 
be  temporary  and  changeable  at  the  King's  pleasure,"  and  in 
1638  they  agreed  that  Virginia  laws  should  be  "  corres- 
pondent to  the  lawes  of  England  and  but  Probationers  onely 
untill  confirmed  here."  ^  Despite  its  inaction,  therefore, 
the  British  government  assumed  from  the  first  that  colonial 
laws  should  be  as  nearly  as  possible  in  conformity  with 
those  of  England,  and  that  the  enactments  of  a  royal  colony 

1  Macdonald,  Select  Charters,  p.  19. 
^Ihid.,  pp.  27,  41. 

'/6irf.,  56,  57. 

*  The  proviso  that  laws  be  "  consonant "  or  "  reasonable  "  appears  in 
the  first  Carolina  charter  of  1662-3,  the  New  Jersey  "Concessions" 
of  1664-5,  the  Pennsylvania  charter  of  1680-1  and  the  Georgia  grant  of 
1732.  Macdonald,  op.  cit.,  pp.  120,  141,  186,  241.  It  was,  however, 
omitted  from  the  patent  of  the  Providence  Plantations  in  1643,  the  Con- 
necticut charter  of  1662,  the  Rhode  Island  charter  of  1663  and  the  grant 
to  the  Duke  of  York.     Macdonald,  op.  cit.,  pp.  91,  116,  125,  138. 

5  Calendar  of  State  Papers,  Colonial  Series,  1574-1660,  p.  100.  Acts 
of  the  Privy  Council,  Colonial  Series,  vol.  i,  p.  239. 


l8  REVIEW  OF  COLONIAL  LEGISLATION  [435 

were  subject  to  review  and  confirmation,  and  even  to  re- 
vision, at  home. 

By  insisting,  later,  upon  the  submission  of  legislation, 
the  crown  was  but  adopting  a  precedent  of  the  proprietary 
governments,  of  which  it  was,  in  some  cases,  the  successor. 
Thus,  the  Virginia  company  in  sanctioning  the  establish- 
ment of  an  assembly  there,  had  provided  that  "  no  Law  or 
Ordinance  .  .  .  should  .  .  .  continue  in  Force  or  Validity 
unless  the  same  ...  be  solemnly  ratified  and  confirmed  in 
a  General  Quarter  Court  in  England,  and  .  .  .returned  to 
them  under  our  Seal."  And  in  like  manner  the  New  Jersey 
Concessions  and  Agreement  of  February,  1665,  granted  the 
power  of  making  laws  which  should  be  presented  to  the 
Lords  Proprietors  for  ratification  within  one  year  of  their 
enactment.^ 

Moreover,  during  the  thirty  years  subsequent  to  the  Res- 
toration there  was  a  considerable  economic  development  in 
the  colonies,  and  a  corresponding  increase  in  the  number 
and  prestige  of  their  assemblies.  At  the  same  time  there 
occurred  in  England  a  revival  of  royal  power,  and  the  con- 
sequent development  of  a  fairly  comprehensive  colonial 
policy.  Under  such  circumstances  it  was  inevitable  that 
the  home  government  sooner  or  later  should  come  to  realize 
the  necessity  of  reviewing  colonial  enactments.  Otherwise 
the  assemblies  themselves  became  sole  judges  of  what  was 
consonant  to  reason  and  conformable  to  the  laws  of  Eng- 
land, as  well  as  the  final  arbiters  whenever  their  economic 
interests  in  regard  to  quit-rents,  fees,  trade,  or  the  estab- 
lishment of  revenue  came  into  conflict  with  those  of  the 
crown. 

It  was  all  but  inevitable,  also,  that  the  task  of  review 

^  Macdonald,  op.  cit.,  pp.  34-36,  143.  The  laws  of  Maryland,  the 
Carolinas  and  the  Bahamas  were  also  subject  to  a  proprietary  dis- 
allowance. 


437]  INTRODUCTORY  1 9 

should  be  assumed  by  the  Privy  Council.  Except  during  the 
Commonwealth,  the  crown  had  always  been  the  branch  of 
the  English  government  most  actively  concerned  with  the 
settlement  and  control  of  plantations;  and  England  was 
now  in  the  midst  of  a  reaction  from  parliamentary  to  royal 
government.  Nor  were  the  administrative  tasks  incident 
to  a  closer  supervision  of  the  colonies  suitable  to  perform- 
ance by  a  legislative  body. 

On  July  4,  1660,  there  was  appointed  by  order  in  council 
a  Committee  of  the  Privy  Council,  to  meet  Mondays  and 
Thursdays  for  the  consideration  of  "  petitions,  proposi- 
tions, memorials,  and  other  addresses  .  .  .  respecting  the 
Plantations."  Most  of  its  members  were  great  officers  of 
state.  Its  functions  were  deliberative  and  advisory.^  But 
the  importance  of  this  standing  committee  was  eclipsed, 
for  a  time,  by  the  appointment  of  separate  and  subordinate 
councils  of  trade  and  plantations. 

A  council  for  foreign  plantations,  consisting  of  "  six 
noblemen  and  forty  two  other  noblemen  and  gentlemen," 
of  whom  any  five  were  to  constitute  a  quorum,  was  com- 
missioned on  December  i,  1660.  A  larger  body  than  the 
committee,  its  membership  comprised  not  only  Clarendon 
and  the  "Great  Officers  of  State  " — the  latter  being  at  the 
same  time  members  of  the  Privy  Council  and  its  commit- 
tees— but  also  a  second  group  of  administrators  and  men 
actively  identified  with  colonial  enterprise.  These  colonial 
experts  constituted  the  usual  working  quorum,  the  cooper- 
ation of  the  councilors  being  sought  in  matters  of  special 
importance.    This  body  was  instructed  to  give  an  account 

1  Beer,  G.  L.,  Old  Colonial  System,  vol.  i,  p.  228.  Acts  of  the  Privy 
Council,  vol.  i,  Introd.,  p.  xiii.  New  York  Colonial  Documents,  vol.  iii, 
Introd.,  p.  xiii.  Special  committees  of  the  Council,  also,  were  ap- 
pointed occasionally  for  specific  purposes, — one  on  the  state  of  Jamaica 
in  October,  1660,  for  example,  and  a  committee  for  New  England  in 
1661.    A.  P.  C,  vol.  i,  Introd.,  p.  xiv. 


20  REVIEW  OF  COLONIAL  LEGISLATION  [438 

of  the  laws  and  government  of  each  colony  "  in  what 
modell  and  frame  they  move  and  are  disposed."  ^  There  is 
no  evidence  that  it  examined  the  colonial  laws  in  any  com- 
prehensive or  systematic  fashion;  although  it  does  appear 
that,  from  this  time  on,  the  royal  colonies  sent  their  acts 
to  England  with  fair  promptitude  and  regularity.^  After 
a  period  of  considerable  activity  this  council  came  to  an  end 
in  1665,  leaving  the  control  of  colonial  affairs  once  more 
with  the  Privy  Council  and  its  committees. 

In  1670  the  combined  oversight  of  trade  and  foreign 
plantations  was  again  intrusted  to  a  subordinate  council — a 
smaller  group  with  salaried  members,  who  advised  with  the 
noblemen  and  great  officers  upon  special  occasions.  With 
its  committees  this  body  proved  an  effective  instrument  of 
colonial  control.  It  carefully  scrutinized  legislation  "  to 
see  if  it  were  not  detrimental  to  English  or  imperial  inter- 
est." ^  But  this  was  among  the  least  of  its  manifold  activi- 
ties during  a  career,  the  briefness  of  which  necessarily  pre- 
cluded the  development  of  a  consistent  policy  regarding 
colonial  legislation.  Various  causes,  among  which  were  a 
lack  of  executive  power  and  a  consequent  dependence  upon 
the  Privy  Council,  together  with  a  widespread  demand  for 
•economy  and  retrenchment  in  administration,  led  to  the 
revocation  of  its  commission  in  December,  1674.*    In  1665, 

1 N.  Y.  Col.  Docs.,  vol.  iii,  p.  35. 

^  One  hundred  and  thirty-eight  Virginia  acts  are  mentioned  in  March 
1662.  Others  follow  in  December  1662,  September  1663  and  September 
1664.  C.  S.  P.,  1661-8,  pp.  82,  115,  162,  235.  Barbadoes  acts  appear 
regularly  after  1650  and  Jamaica  acts  after  1661. 

*  Beer,  op.  cit.,  vol.  i,  p.  247.  Evelyn  "  was  on  the  Committee  with 
Sir  Humphrey  Winch,  the  Chairman,  to  examine  the  Laws  of  His 
Majesty's  several  Plantations  and  Colonies  in  the  West  Indies." 
Evelyn's  Diary,  November  8,  1672.    Quoted  by  Beer,  note  2. 

*  Beer,  op.  cit.,  vol.  i,  pp.  253,  254.  N.  Y.  Col.  Docs.,  vol.  iii,  Introd., 
p.  xiv.    Andrews,   "Committees,   Commissions   and  Councils"  in  the 

J.  H.  U.  Studies,  vol.  xxvi,  pp.  97,  103. 


439]  INTRODUCTORY  21 

during  the  brief  interval  between  the  tenure  of  subordinate 
councils,  the  committee  of  the  Privy  Council  considered 
seven  laws  from  the  Island  Colonies  and  recommended  their 
confirmation.  The  committee  objected,  however,  to  a  pro- 
viso exempting  certain  lands  in  a  Barbadoes  impost  act, 
and  this  clause  the  Council  "disallowed  and  made  void," 
although  the  act  itself  they  confirmed/ 

By  an  order  in  council  of  March  12,  1675,  all  matters 
"  left  loose  and  at  large  "  by  the  dissolution  of  the  council 
of  trade  and  plantations,  reverted  to  the  committee  of  the 
Privy  Council.  The  committee,  officially  styled  "  the  Right 
Honorable,  the  Lords  of  the  Committee  for  Trade  and 
Plantations,"  which  thus  resumed  entire  control  of  colo- 
nial affairs,  consisted  at  this  time  of  twenty-one  councilors, 
who  met  at  least  once  a  week,  reporting  to  the  Council  from 
time  to  time.^  Although  subject  to  occasional  changes  in 
organization  and  membership,  and  subordinate  always  to 
the  Privy  Council,  it  remained  the  administrative  center  of 
the  plantations  from  1675  until  the  establishment  of  the 
Board  of  Trade  in  1696.  Save,  perhaps,  for  a  period  of 
apathy  and  procrastination  extending  from  1681  until  the 
Revolution  of  1688,  its  review  of  colonial  legislation  was 
far  more  systematic  and  effective  than  that  of  its  prede- 
cessor. 

Prior  to  1685  the  royal  colonies,  whose  acts  alone  were 

1 C.  S.  P.,  1661-8,  pp.  162,  189,  293.    A.  P.  C,  vol.  i,  p.  396. 

2  William  Blathwayt,  who  had  spent  "  some  time  in  this  service,"  was 
appointed  "to  continue  always  as  an  assistant  to  the  Qerk  of  the 
Council  at  150  pounds  per  year."  A.  P.  C,  vol.  i,  p.  665.  In  Novem- 
ber 1677,  the  Council  raised  Blathwayt's  salary  to  250  pounds,  "  for  his 
great  pains  and  application  to  your  Majesty's  Service  in  the  Business  of 
Trade  and  Plantations."  A.  P.  C,  vol.  i,  p.  743-  Nine  members  were 
designated  to  have  immediate  care  of  matters  in  regard  to  which  they 
had  been  formerly  conversant,  any  five  to  be  a  quorum.  A.  P.  C, 
vol.  i,  p.  619.    A^.  Y.  Col.  Docs.,  vol.  iii,  Introd.,  p.  xiv. 


22  REVIEW  OF  COLONIAL  LEGISLATION  [440 

subject  to  review  in  England,  were:  Jamaica,  Barbadoes, 
the  Leeward  Islands  and,  on  the  continent,  Virginia.  New 
Hampshire,  it  is  true,  became  a  royal  colony  in  1680,  but  it 
submitted  no  laws  until  after  the  year  named.  During  an 
^important  period,  therefore,  when  precedents  were  in  the 
^  making,  and  policy  in  process  of  rapid  formation,  the  action 
of  the  Privy  Council  upon  colonial  legislation  was  confined 
very  largely  to  the  Island  Colonies. 

In  1679  the  attention  of  the  committee  was  directed  to 
several  Barbadoes  laws,  passed  between  1660  and  1672,  by 
a  complaint  lodged  against  the  revenue  acts  of  1675  and 
1678  by  the  farmers  of  the  provincial  revenue.^  The  gov- 
ernor's instructions  had  authorized  his  assent  only  to  laws 
of  two  years'  duration,  which  should  be  transmitted  "with 
all  convenient  speed  "  for  his  majesty's  allowance.  When, 
therefore,  the  committee  found  that  the  more  important  of 
these  acts  were  limited  in  duration  to  four,  five  and  six 
months,  and  that  excepting  revenue  acts,  "  never  any  one 
was  ever  yet  sent  over,"  they  expressed  disapproval  of  the 
governor's  conduct  and  agreed  that  subsequent  legislation 
should  be  "  indefinite  and  without  limitation  of  time," 
and  be  transmitted  "  within  three  months  or  sooner."  ^ 
Their  decision  received  formal  embodiment  in  Governor 
Button's  commission  issued  in  1680.  This  provided  that 
laws  should  continue  in  force  until  disallowed  by  his  maj- 
esty, and  that  upon  pain  of  the  forfeiture  of  one  year's 
salary  the  governor  should  transmit  them  under  seal  within 
three  months,  sending  duplicates  by  the  next  conveyance.' 

*  Board  of  Trade  Journal,  vol.  iii,  p.  30. 

^B.  T.  I.,  vol.  iii,  pp.  30,  34,  35-  C.  S.  P.,  1677-8,  p.  388.  A.  P.  C, 
vol.  i,  p.  857. 

^  B.  T.  /.,  vol.  iii,  p.  183.  Similar  instructions  were  issued  to  John 
Cutt,  President  of  the  Council  in  New  Hampshire,  in  1680,  and  to 
Governor  Cranfield  in  1681.  N.  H.  Prov.  Papers,  vol.  i,  p.  379.  Entry 
Books,  in  the  Public  Record  Office,  London,  CO/S-940,  p.  39. 


441  ]  INTRODUCTORY  23 

Later,  when  the  committee  received  a  militia  act  limited  to 
three  months,  the  governor  was  directed  more  explicitly  to 
pass  no  law  concerning  the  government  "  which  hath  not 
a  temporary  end  in  any  other  terms  than  such  as  should 
render  the  same  indefinite."  ^  By  the  adoption  of  these 
provisions,  which  became  thenceforth  a  part  of  the  cus- 
tomary form  for  instructions  to  governors,  the  English 
government  reversed  its  early  policy  of  insisting  that  colo- 
nial laws  be  of  limited  duration. 

During  its  consideration  of  these  Barbadoes  acts  the 
committee  sought  from  "  the  Judges  "  legal  advice  upon 
four  questions,  the  scope  and  penetration  of  which  reveal 
how  thoroughly  the  powers  of  the  crown  in  regard  to  colo- 
nial legislation  were  considered.  They  inquired:  "(i) 
Whether  the  laws  of  Barbadoes  remain  perpetually  in  force 
without  the  King's  confirmation.  (2)  If  the  King  confirm 
[a  law],  may  the  Governor,  Council  and  Assembly  repeal 
it  without  [his]  consent?  (3)  Can  laws  sent  to  England 
be  amended  or  must  they  be  [wholly]  allowed  or  rejected? 
(4)  May  the  King  at  any  time  declare  dissent  to  laws  which 
he  has  not  confirmed,  and  do  such  become  void  imme- 
diately." ^  Apparently  these  questions  received  no  authori- 
tative answer  at  this  time,  although,  judging  from  the  terms 
of  Governor  Button's  commission,  the  committee  seem  to 
have  decided  the  first  and  the  fourth  in  the  affirmative.* 

In  1676  the  committee  "  took  in  hand  "  certain  acts  of 
Jamaica,  "  all  bound  up  in  a  particular  book."  Their  lord- 
ships expressed  themselves  as  not  pleased  with  certain  fea- 

1  B.  T.  J.,  vol.  iv,  p.  247.    B.  T.  J.,  vol.  v,  p.  137. 

2  C.  S.  P.,  1677-80,  p.  569.    B.  T.  /.,  vol.  iii,  p.  180 ;  10  July  1680. 

'  In  practice  the  crown  ultimately  answered  the  second  and  third  in 
the  negative,  although  the  possibility  of  a  partial  confirmation  or  dis- 
allowance was  considered  at  the  Council  as  late  as  1760.  A.  P.  C, 
vol.  iv,  p.  440. 


24  REVIEW  OF  COLONIAL  LEGISLATION  [442 

tures  of  these  laws  and  proposed  sundry  amendments,  agree- 
ing that  their  alterations  might  be  ''  approved  of  by  the 
Governor,  Council  and  Assembly,  without  reenacting  them, 
and  sending  them  back  for  His  Majesty's  approbation 
again."  ^  But  the  willingness  of  the  committee  thus  to 
expedite  matters  was  of  no  avail,  for  the  assembly  never 
conceded  that  its  laws  could  be  amended  in  England.  Some 
months  later  the  committee  noted  that  the  term  of  two  years 
during  which  these  acts  were  to  continue  in  force  was 
almost  expired,  and  again  undertook  their  consideration. 
"  Upon  the  whole  matter,"  their  lordships  decided  to  refer 
them  to  the  attorney  general  for  his  opinion  "  how  far 
they  are  fit  to  be  allowed  by  His  Majesty."  They  also  de- 
sired him  to  prepare  a  bill,  like  Poyning's  Law  in  Ireland — 
which  authorized  the  Irish  Parliament  to  pass  only  such 
bills  as  were  submitted  to  it  by  the  crown  and  the  English 
Privy  Council — directing  the  manner  of  enacting,  trans- 
mitting  and  "  amending  the  laws  of  Jamaica  by  His  Maj- 
esty here  in  England."  ^  In  other  words,  the  committee 
not  only  assumed  power  to  amend  the  laws  of  Jamaica,  but 
also  determined  that  for  the  future  none  should  be  enacted 
there  save  such  as  were  drafted  in  England  and  transmitted 
to  the  colony  for  ratification. 

Because  of  delay  upon  the  part  of  the  attorney  general, 
no  further  action  was  taken  until  September,  1677,  when 
the  committee  received  additional  acts  from  Jamaica.  Upon 
examination,  these  were  found  "prejudicial  to  His  Maj- 
esty's Prerogative  and  authority,"  and  after  debate  it  was 
reaffirmed  "  that  noe  Law  be  assented  unto  by  the  Gov- 
ernor untill  it  bee  first  approved  by  the  King."  "  The 
Governor  to  present  to  His  Majesty  a  scheme  of  such  Laws 

^  C.  S.  P.,  1675-6,  p.  394.    B.  T.  J.,  vol.  i,  pp.  118,  120,  121,  127. 
»  Beer,  Old  Col.  System,  vol.  i,  p.  210.    C.  5".  P.,  1677-80,  pp.  65,  67. 
B.  T.  J.,  vol.  ii,  pp.  26,  42. 


443]  INTRODUCTORY  25 

as  hee  shall  think  fit  and  necessary  according  to  the  .  .  . 
exegencies  of  affairs,  that  His  Majesty  may  take  [them] 
into  consideration  and  return  them  in  the  forme  wherein 
he  shall  be  pleased  to  have  them  enacted."  ^  These  acts 
likewise  were  dispatched  to  the  attorney  general,  not  only 
to  be  examined,  but  also  to  be  "  framed  "  and  "  modeled  " 
according  to  their  lordships'  intent.^  Four  days  later  the 
committee  resolved  more  definitely  '*  to  frame  a  body  of 
Laws  such  as  are  fit  for  the  Earl  of  Carlisle  (the  new  Gov- 
ernor) to  settle  on  his  arrival  at  Jamaica."  ^  They  also 
questioned  the  attorney  general  whether  a  revenue  act  of 
1672  might  not  be  revived  and  made  perpetual;  and  when 
he  replied,  that  by  the  terms  of  the  governor's  commission 
such  a  proceeding  would  require  the  consent  of  the  assem- 
bly, som^e  of  the  members  urged  that  a  former  governor 
had  made  laws  without  an  assembly.  But  the  committee 
contented  itself  with  carefully  framing  a  permanent  revenue 
act  with  the  assistance  and  approval  of  the  lord  treasurer 
and  the  commissioners  of  the  customs.*  At  length,  in  De- 
cember, 1677,  the  attorney  rendered  his  long-deferred  re- 
port, presenting  such  a  body  of  laws  as  he  conceived  fit  to 
be  passed  by  the  assembly.  In  this  form  they  received  the 
approval  of  the  committee,  the  sanction  of  the  Privy  Coun- 
cil and  the  stamp  of  the  great  seal.^ 

The  Jamaica  assembly,  however,  refused  to  endorse  the 
laws  thus  carefully  drafted.     They  complained  that  the 

^  B.  T.  /.,  vol.  ii,  pp.  67,  no,  III,  112. 

^B.  T.  J.,  vol.  ii,  p.  114. 

^B.  T.J.,  vol.  ii,  115. 

*  B.  T.  /.,  vol.  ii,  195.     Beer,  op.  cit.,  vol.  i,  p.  210. 

5  Thirty-seven  laws  were  approved  on  February  15,  1678.  The  com- 
mittee were  in  doubt  whether  they  should  be  confirmed  by  Order  in 
Council,  or  passed  under  the  great  seal,  and  the  Council  decided  for  the 
latter  procedure.  A.  P.  C,  vol.  i,  pp.  761,  7^Z.  B.  T.  /.,  vol.  ii,  172, 
195.    C.  S.  P.,  1677-80,  p.  601. 


26  REVIEW  OF  COLONIAL  LEGISLATION  [444 

committee's  revenue  bill  was  perpetual  and  the  revenue 
liable  to  be  diverted ;  that  distance  rendered  this  manner  of 
passing  laws  wholly  impracticable;  and  that  the  plan  de- 
prived them  of  all  deliberative  power/  The  committee,  in 
their  report  upon  this  remonstrance,  mentioned  the  advan- 
tages which  would  accrue  to  the  colony  from  an  established 
body  of  law.  The  late  power  of  making  temporary  acts — 
a  mere  expedient,  resorted  to  only  until  "  wholesome  laws 
founded  on  many  years'  Experience  should  be  agreed  on 
by  the  people  and  finally  enacted  by  Your  Majesty  " — had 
been  abandoned  because  of  "  irregular,  violent  and  unwar- 
rantable proceedings  "  on  the  part  of  the  assembly.  They 
suggested,  also,  that  if  the  assembly  persisted  in  their  obsti- 
nate course,  the  governor  might  be  given  power  to  ignore 
them  and  to  govern  according  to  the  laws  of  England  with 
the  advice  of  the  council.^ 

Meanwhile  the  Jamaica  assembly  had  twice  rejected  the 
permanent  revenue  bill  sent  over  for  their  ratification,  and 
had  passed  another  conceived  "  according  to  their  own  will 
and  humor,"  which  granted  a  revenue  for  one  year  only 
and  contained  an  obnoxious  clause  exempting  Jamaica  ships 
from  all  manner  of  impositions.^  Consideration  of  this  act 
led  to  renewed  discussion  as  "  to  how  far  English  laws  and 
methods  of  government  ought  to  take  place  in  Jamaica." 
Four  questions  as  to  the  royal  power  of  making  laws  there 
were  referred  to  the  attorney  and  solicitor  general.*  Their 
content  is  not  given,  but  they  were  probably  identical  with 
the  four  questions  propounded  on  this  subject  in  connection 
with  the  Barbadoes  acts.'"*    The  attorney  general  found  them 

M.  P.  C,  vol.  i,  p.  828. 

2  C.  S.  P.,  1677-80,  pp.  367-369.    A.  P.  C,  vol.  i,  p.  833. 

^B.  T.  /.,  vol.  iii,  pp.  94,  no. 

*A.  P.  C,  vol.  ii,  p.  6. 

«  C.  S.  P.,  1677-80,  p.  569,  supra,  p.  23. 


445]  INTRODUCTORY  27 

"of  such  difficulty  and  moment"  as  to  require  the  opinion 
of  the  judges,  and  a  conference  between  the  judges  and 
the  attorney  was  held,  apparently  in  the  presence  of  the 
committee/  The  result  was  a  definitive  opinion  from  the 
attorney  general  that  the  colony  should  be  governed  "  by 
such  laws  [only]  as  are  made  there  and  established  by  His 
Majesty's  authority."  ^  Reluctantly  the  committee  now  re- 
ceded from  their  untenable  position.  With  the  assistance 
of  Chief  Justice  North,  an  agreement  was  effected  between 
their  lordships  and  certain  gentlemen  of  Jamaica,  whereby 
the  assembly  was  to  pass  a  perpetual  revenue  bill,  together 
with  a  bill  for  the  payment  of  contingencies  to  continue 
seven  years — the  proceeds  from  quit-rents  and  the  tax  on 
wine  licences  to  be  appropriated  solely  to  the  support  of 
the  government.  On  the  other  hand,  the  power  to  make 
laws  which  should  continue  in  force  until  disallowed  —  a 
privilege  already  enjoyed  by  Barbadoes — was  conceded  to 
the  assembly  of  Jamaica.^  In  accordance  with  the  terms  of 
this  agreement,  the  Earl  of  Carlisle  was  instructed  to  call 
an  assembly,  which  was  empowered  to  make  laws  "  with 
the  advice  and  consent  of  the  Governor  and  Council."  Car- 
lisle was  to  "endeavor  to  procure"  the  passing  of  a  revenue 
bill  according  to  a  draft  sent  over  by  him,  and  to  permit  no 
material  variations  from  it*  These  instructions  mark  the 
victory  of  the  Jamaica  assembly  in  the  constitutional 
struggle  which  decided  once  for  all  that  colonial  laws  should 
be  passed  not  by  the  Privy  Council,  with  the  consent  of  the 
governor,  council  and  assembly,  but  by  the  governor,  council 
and  assembly  with  the  consent  of  the  Privy  Council. 

*  B.  T.  /.,  vol.  Hi,  p.  167. 
25.  T.  /.,  vol.  iii,  p.  167;  27  April  1680. 

^B.  T.  /.,  vol.  iii,  pp.  214,  220,  221.    C.  5".  P.,  1677-80,  p.  621.    Beer, 
op.  cit.,  vol.  i,  p.  211. 
^  C.  S.  P.,  1677-80,  pp.  623,  624;  3  November  1680. 


28  REVIEW  OF  COLONIAL  LEGISLATION  [446 

On  receiving  information,  a  year  later,  that  the  assembly 
had  passed  several  laws  without  establishing  the  desired 
revenue,  the  Privy  Council  issued  a  warrant  declaring  these 
laws  void  if  no  revenue  bill  were  passed  before  the  arrival 
of  Lynch,  the  succeeding  governor/  This  is  the  only  case 
recorded  in  which  laws  were  disallowed  conditionally  before 
being  submitted  to  the  Council. 

With  difficulty  the  governor  (Morgan)  secured  a  revenue 
act  within  the  prescribed  time.  But  it  was  for  seven  years 
only,  and  objectionable  also  because  it  provided  that  the 
governor  should  account  to  the  assembly  for  expenditures 
each  year,  thus  rendering  an  annual  assembly  obligatory. 
Furthermore,  it  was  to  be  void  if  the  other  laws  "  tacked 
to  it"  were  "altered  or  diminished  " — an  unjustifiable  effort 
to  oblige  the  king  to  confirm  all  the  other  laws  in  perpetu- 
ity.^ The  Council  insisted  that  until  the  assembly  should 
amend  this,  no  action  would  be  taken  upon  any  of  the 
Jamaica  laws.  It  was  further  suggested  that  the  laws  of 
England,  by  nO'  means  excluding  the  duty  of  tonnage  and 
poundage  and  tax  upon  wines,  would  be  enforced  there. ^ 
In  the  following  year  Governor  Lynch  secured  a  revenue 
act  which  repealed  its  predecessor  and  satisfied  the  exactions 
of  the  home  authorities.  This,  also,  was  limited  to  seven 
years,  and  the  Council  in  confirming  most  of  the  other 
Jamaica  laws  did  so  for  a  like  period.  Of  the  remaining 
acts,  one  was  disallowed  and  several  were  returned  with 
suggested  amendments.* 

M.  P.  C,  vol.  ii,  pp.  25,  26;  October  1681. 

2  C.  S.  P.,  1681-5,  p.  316. 

^  B.  T.  J.,  vol.  iv,  74.    Beer,  op.  cit.,  vol.  i,  p.  218. 

M.  P.  C,  vol.  ii,  p.  833.  B,  T.  /.,  vol.  iv,  pp.  109,  no,  iii.  The 
journal  notes  "His  Majesty's  great  Grace  and  condescension  *  in 
confirming  the  laws  *  for  seven  years  whereby  he  puts  it  out  of  his 
power  to  vacate  them  within  that  time  if  he  should  think  fit."    This 


447]  INTRODUCTORY  29 

Governor  Lynch  subsequently  secured  an  extension  of  the 
revenue  for  twenty-one  years,  and  the  Council  re-confirmed 
the  Jamaica  laws,  with  one  exception,  for  the  same  period/ 
These  constitute  the  only  cases  in  which  the  Privy  Council 
confirmed  colonial  acts  for  a  limited  time. 

The  action  of  the  Council  upon  Virginia  legislation  dur- 
ing this  period  follows  a  cycle  similar  to  that  pursued  in  , 
the  case  of  Jamaica,  except  that  the  government  was  more/ 
conservative  in  its  exactions  while  the  assembly  proved 
more  complaisant.  In  1677  the  committee  examined  cer- 
tain laws  passed  since  Bacon's  Rebellion,  and  sought  the 
opinion  of  the  attorney  general  and  of  the  royal  commis- 
sioners to  Virginia  upon  them.^  The  committee  reported 
after  consideration  that  three  of  these  acts  for  the  punish- 
ment of  participants  in  the  late  rebellion  conflicted  with  the 
terms  of  his  majesty's  proclamation  of  amnesty,  and  ex- 
ceeded the  legislative  powers  of  the  Virginia  government. 
Their  lordships  recommended,  therefore,  that  they  be  "  Dis- 
annulled and  abrogated,"  and  that  other  laws  ''more  agree- 
able to  His  Majesty's  justice  and  honour  be  prepared  and 
sent  to  Virginia."  ^ 

A  few  months  later  two  packets  of  "Orders  and  Acts  of 
the  Assembly  "  were  received,  together  with  a  complaint 

was  done  despite  a  clause  in  the  governor's  commission  providing  that 
laws  should  be  in  force  "until  our  pleasure  be  signified  to  the  con- 
trary." A.  P.  C,  vol.  ii,  pp.  46,  47.  Twenty-eight  acts  were  confirmed, 
many  of  which  were  modeled  upon  those  sent  over  in  1678  and  re- 
jected by  the  assembly. 

^  B.  T.  J.,  vol.  iv,  p.  263.     Beer,  op.  cit.,  vol.  i,  p.  219. 

2  C.  S.  P.,  1677-80,  p.  139.    B.  T.  /.,  vol.  ii,  p.  174. 

'J5.  T.  /.,  vol.  ii,  pp.  180,  181.  A.  P,  C,  vol.  i,  pp.  7S7-7^\  18  January 
1678.  CO/s-1355,  pp.  222,  227.  These  laws,  passed  at  Green  Spring 
in  February  1676  were  entitled  (i)  "Indemnity,"  (2)  "Attainder"  and 
(3)  "  Inflicting  Paines,  Penalties  and  Fines  upon  Great  Offenders." 
Their  repeal  was  again  recommended  by  the  committee  in  April  1679. 
B.  T.  /.,  vol.  ii,  p.  327. 


30  REVIEW  OF  COLONIAL  LEGISLATION  [448 

that  his  majesty's  commissioners  had  forced  from  the  clerk 
of  the  assembly  the  original  journals.  Observing  unsym- 
pathetically  that  the  assembly  should  be  brought  to  a  "due 
sense  of  their  duty  and  submission,"  the  Council  ordered 
the  committee  to  prepare  "  such  a  Scheme  of  Laws  and 
Orders  as  they  shall  thinke  fitt  to  be  approved  and  trans- 
mitted unto  Virginia."  ^  The  committee  acquiesced  and 
resolved  to  send  over  a  body  of  laws  under  the  great  seal 
of  England,  to  be  confirmed  by  the  assembly.^  But  this 
plan  had  to  be  abandoned  because  there  was  not  sufficient 
time  to  complete  the  proposed  revision  before  the  departure 
of  Governor  Culpeper  for  the  colony,  and  because  many 
of  the  existing  laws  had  never  been  transmitted.^  It  is  by 
no  means  impossible,  also,  that  intimations  of  the  recalci- 
trant attitude  of  the  Jamaica  assembly  had  already  reached 
the  English  authorities.  It  was  agreed,  therefore,  that  Cul- 
peper, after  his  arrival,  should  consider  and  compile,  with 
the  assistance  of  his  council,  all  the  Virginia  laws  and  send 
them  to  England,  "  that  we  may  take  them  into  considera- 
tion and  return  them  in  the  form  we  shall  think  fit  they  be 
enacted  in."  *  Meanwhile  the  revenue  act  and  such  others 
as  were  absolutely  necessary  were  to  be  amended  as  pro- 
posed and  sent  over  by  the  new  governor.  Three  acts,  for 
"  Naturalization,"  for  a  "General  Pardon  and  Oblivion," 
and  for  "  Raising  a  Public  Revenue "  were  accordingly 
drafted  and  entrusted  to  Lord  Culpeper,  together  with  a 

M.  P.  C,  vol.  i,  pp.  789,  790. 

'  Also  * "  wherein  all  defects  in  the  stile  may  be  amended  and  all 
forfeitures  granted  to  the  King  only,  Particularly  wherein  several 
clauses  in  the  act  raising  two  shillings  per  Hgs.  on  tobacco  exported 
*  may  be  explained  and  amended,  and  several  frauds  hindered.*' 
CO/S-1355.  p.  238. 

•  CO/S-1355,  p.  258,  Marginal  note. 

*  CO/5-1355,  p.  313. 


449]  INTRODUCTORY  31 

warrant  for  his  giving  assent  when  they  should  be  passed 
in  Virginia/ 

The  assembly  "  thankfully  embraced  "  the  act  of  pardon, 
and  passed  with  some  reluctance  those  of  naturalization 
and  revenue.  But  when  the  latter  was  examined  in  com- 
mittee, it  was  found  to  contain  a  clause  exempting  Virginia 
owned  or  built  ships  from  the  taxes  imposed.^  Their  lord- 
ships, desiring  to  save  the  grant  of  revenue,  but  loath  to 
accept  the  obnoxious  proviso,  which  "  Lord  Culpeper  had 
no  power  or  direction  to  add,"  cited  as  a  precedent  the 
Barbadoes  revenue  act  and  suggested  that  the  law  be  con- 
firmed and  the  objectionable  exemption  disallowed.  This 
was  done  by  an  order  in  council  of  October  14,1680,  dated 
three  weeks  prior  to  Carlisle's  instructions,  which  embodied 
the  government's  compromise  in  the  Jamaica  controversy. 
The  partial  disallowance  of  this  act  was  hardly  a  violation 
of  the  powers  conferred  upon  the  assembly  by  Culpeper's 
immediate  instructions.  But  that  the  committee  neverthe- 
less felt  the  weakness  of  their  position  is  shown  by  the  care 
with  which  they  cited  the  Barbadoes  act  as  a  precedent.^ 

During  the  period  under  consideration,  the  number  of 
royal  provinces  was  increased  by  four.  New  Hampshire 
obtained  a  separate  legislature  in  1680  and  New  York  its 
first  established  assembly  in  1691.  The  Massachusetts  char- 
ter of  the  same  year  required  the  submission  of  her  laws, 
while  the  Maryland  proprietor  gave  way  to  a  royal  gov- 
ernor in  1692. 

The  commission  of  John  Cutt,  the  first  president  of  the 

'  CO/5-1355,  P-  258.  C.  5*.  P.,  1677-80,  pp.  450,  452.  A.  P.  C,  vol.  i, 
p.  818. 

^C.  S.  P.,  1677-80,  pp.  558,  612.  This  act  granted  to  the  crown  in 
perpetuity  the  revenue  from  the  two  shillings  per  hogshead  on  tobacco 
exported,  from  tonnage  dues  of  one-third  penny  per  ton,  and  from  a 
pole  tax  of  six  pence  on  every  immigrant.    Beer,  op.  cit.,  pp.  205-207. 

3  B.  T.  /.,  vol.  iii,  p.  210. 


32  REVIEW  OF  COLONIAL  LEGISLATION  [450 

council  in  New  Hampshire,  provided  that  laws  passed  by 
the  president,  council  and  assembly  should  be  in  force  pend- 
ing confirmation  or  disallowance  in  England/  After  con- 
sidering the  first  laws  sent  from  there,  the  committee  pro- 
nounced them  "  unequal,  incongruous  and  absurd,"  and  the 
methods  of  the  council  and  assembly  in  establishing  them 
"disagreeable  and  repugnant  to  the  terms  of  Your  Majesty's 
Commission."  They  recommended  that  all  these  acts  be 
rejected  and  a  suitable  person  commissioned  as  governor.^ 
This  drastic  action  was  due  probably  not  so  much  to  in- 
herent defects  in  the  laws,  as  to  the  fact  that  the  assembly 
had  presumed  to  take  part  in  local  land  controversies  and 
to  confirm  certain  disputed  township  grants.  Other  acts, 
subsequently  passed,  met  with  a  more  favorable  reception; 
but  the  assembly  was  so  prone  to  indulge  in  unfruitful  dis- 
putes with  the  governor  that  comparatively  few  laws  were 
passed  prior  to  1696. 

The  first  assembly  of  New  York  was  called  by  Governor 
Dongan  in  1683.  Acts  agreed  to  by  the  governor  and 
assembly  were  to  be  in  force  until  the  Duke  of  York  should 
signify  his  "dislike  of  &  refusall  to  passe  them."  ^  Thir- 
teen acts  were  assented  to  by  the  Duke  on  October  4,  1684. 
One  of  the  laws  transmitted,  entitled  the  "Charter  of  Lib- 
erties and  privileges,"  which  was  at  once  a  bill  of  rights 
and  a  frame  of  government,  was  compared  unfavorably  by 
the  committee  with  the  "Commissions  by  which  the  gov- 
ernment of  other  Colonies  is  settled,"  and  was  disallowed, 
in  view,  it  was  alleged,  of  the  intended  consolidation  of 
New  York  with  New  England.*    Indeed  James,  now  King, 

^  C.  S,  P.,  1677-80,  pp.  390,  391-    -A/".  H.  Prov.  Papers,  vol.  i,  p.  379- 

2  c.  s.  P.,  1681-5,  pp.  174, 182.  co/s-940,  pp.  58, 59. 

» Col  Laws  of  New  York,  vol.  i,  p.  no.    Col  Docs.,  vol.  iii,  p.  33^. 

*  N.  Y.  Col  Laws,  vol.  i,  p.  in.  CO/s-im,  p.  61.  CO/5-1 112,  p.  53- 
B.  T.  J.,  vol.  V,  pp.  91,  100.  C.  S.  P.,  1685-8,  p.  7.  ^'  y-  Col  Docs., 
vol.  iii,  pp.  357-359- 


45 1  ]  INTRODUCTORY  33 

not  only  annulled  the  "Charter,"  but  revoked  his  grant  of 
an  assembly  as  well.  Consequently,  until  the  assembly  called 
by  Slaughter  in  1691,  the  acts  of  New  York  were  drafted, 
as  before,  by  the  governor  and  council.  After  1691,  New 
York  laws  were  transmitted  regularly  to  England;  but 
owing  to  the  laxity  of  the  committee  at  this  period,  their 
consideration  was  deferred,  for  the  most  part,  until  after 
the  formation  of  the  Board  of  Trade. 

Copley,  the  first  royal  governor  of  Maryland,  was  com- 
manded to  revise  the  laws  in  force,  and  to  send  over  a 
complete  body  of  them  for  approbation  or  disallowance. 
But  the  committee  took  definite  action  upon  only  four  laws 
prior  to  1696.  A  tonnage  act  was  disallowed  at  the  insti- 
gation of  Lord  Baltimore;  while  two  acts  for  the  "  Estab- 
lishment of  a  Protestant  Religion  "  and  an  act  for  "  Erect- 
ing Free  Schools,"  all  subjects  of  contention  within  the 
colony,  met  a  like  fate  in  January,  1696.^ 

In  1676,  during  a  debate  as  to  the  status  of  New  Eng- 
land in  reference  to  royal  control,  the  committee  questioned 
whether  Massachusetts  laws  "  should  not  have  like  appro- 
bation from  His  Majesty  as  in  other  Plantations."  ^  As 
a  result  of  complaints  from  Edward  Randolph,  the  Council 
ordered  the  Massachusetts  agents  to  attend  Solicitor  Gen- 
eral Winnington  with  copies  of  their  charter  and  laws.^ 
The  attorney  and  solicitor  each  rendered  a  report  citing 
many  acts  which  were  repugnant  to  the  laws  of  England, 
and  consequently  contrary  to  the  terms  of  the  charter.*     In 

1  CO/5-713,  p.  loi.    CO/5-724,  p.  20.    C.  S.  P.,  1693-6,  pp.  31,  ^3^' 

2  C.  S.  P.,  i67sA  P-  350. 

3  B.  T.  /.,  vol.  ii,  p.  61.    A.  P.  C,  vol.  i,  pp.  7^5,  726 ;  20  July  1677. 

*The  Massachusetts  charter  granted  the  common  privileges  of  a  cor- 
poration, with  the  reserving  clause  that  laws  be  not  repugnant  to  the 
laws  of  England.    C.  S.  P.,  1677-80,  p.  140. 

Regarding  these  laws  the  attorney  general  remarked  somewhat  naively 
that  the  agents  of  the  colony  were  themselves  "in  a  manner  ashamed 


34  REVIEW  OF  COLONIAL  LEGISLATION  [452 

order  to  preserve  their  privileges,  the  Massachusetts  author- 
ities agreed  to  several  conditions,  one  being  that  the  objec- 
tionable acts  should  be  annulled  by  the  colony  and  due  care 
taken  that  no  more  such  be  made  in  the  future/  From  time 
to  time  during  the  next  few  years  the  committee  scrutinized 
and  even  amended  the  laws  of  New  England  with  a  view 
to  their  suitability  after  the  proposed  annulment  of  the 
charter.^ 

In  considering  the  draft  of  a  new  charter,  the  committee 
insisted  that  Massachusetts  acts  be  subject  to  disallowance 
by  the  Privy  Council.  It  was  suggested  at  first  that  they 
should  be  transmitted  within  one  year  and  be  void  if  dis- 
allowed within  a  like  period  after  they  were  received.* 
Later  it  was  proposed  that  they  be  transmitted  "  at  the 
first  opportunity,"  to  become  void  if  disallowed  at  any  time 
thereafter.  But  the  agents  for  Massachusetts  objected 
strongly  to  the  latter  proposal,  urging  that  the  period  dur- 
ing which  acts  might  be  disallowed  be  eighteen  months. 
The  final  draft  of  the  charter  fixed  this  period  at  three 
years,  and  stipulated  definitely  that  unless  declared  void 
within  that  time  after  presentation,  laws  should  ''continue 
in  force  until  the  Expiration  thereof  or  until  Repealed  by 
the  General  Assembly."  * 

of  them,  only  as  regards  that  concerning  the  observation  of  the  Lord's 
Day  they  seemed  somewhat  tenacious."  The  criticisms  of  the  law 
officers  were  set  forth  at  some  length  "  as  a  guide  that  the  Massachu- 
setts may  proceed  according  to  their  patent,"  and  the  agents  were 
called  in  and  consulted  as  to  improvements.   C.  S,  P.,  1677-80,  pp.  139-141. 

» Proposals  from  the  Agents.  C.  S.  P.,  1677-80,  p.  366;  23  May  1679. 
An  account  of  what  had  been  done  by  the  Colony,  from  Joseph 
Dudley  and  John  Richards,  B.  T.  /.,  vol.  iv,  47 ;  24  August  1682. 

2  C.  S.  P.,  1681-5,  pp.  415,  752,  762,  764.  B.  T.  /.,  vol.  V,  pp.  57,  78. 
B.  T.  /.,  vol.  vi,  p.  81. 

'CO/5-856,  p.  511. 

*C.  S.  p.,  1689-92,  pp.  470,  511.  Goodell,  Acts  and  Resolves,  vol.  i,, 
p.  17.    B.  T.  /.,  vol.  vii,  p.  32. 


453]  INTRODUCTORY  35 

Fifty  acts  of  1692,  the  first  passed  under  the  new  char- 
ter, were  duly  submitted  to  the  Privy  Council,  and  referred 
to  the  committee,  who,  despite  an  elaborate  criticism  of 
them  submitted  anonymously  by  a  resident  of  the  colony, 
took  no  action  thereon  until  March,  1695/  At  several 
meetings  held  during  the  spring  of  1695  they  were  taken 
up  and  carefully  considered.  On  June  4th  the  committee 
agreed  to  recommend  the  confinnation  of  thirty-eight  acts. 
Eight  they  found  objectionable  and  urged  for  repeal,  while 
three  acts  of  a  general  nature — "  Punishing  Capital  Offen- 
ders, "  Establishing  Courts,"  and  "  Securing  the  Liberty 
of  the  Subject  " — ^they  criticized  without  definite  recom- 
mendations as  to  confirmation  or  disallowance.  The  Coun- 
cil confirmed  thirty-five  acts  and  disallowed  fifteen — seven 
more  than  the  committee  had  recommended — a  fact  which 
shows  that  the  latter's  weakness  and  indecision,  at  this  time, 
was  to  some  extent  offset  by  the  exercise  of  discretion  upon 
the  part  of  the  Privy  Council.^ 

The  laws  of  1693-4  were  also  presented  to  the  Council, 
and  by  them  referred  to  the  committee.  Two  acts  concern- 
ing commerce  and  navigation  the  latter  body  sent  at  once 
to  the  lords  and  commissioners  of  the  treasury;  the  re- 
mainder, as  usual,  to  the  attorney  general.^  The  commis- 
sioners of  customs  consulted  a  revenue  collector  for  New 
England  who  chanced  to  be  in  England,  and  reported  ob- 
jections against  the  two  acts  referred  to  the  treasury.  The 
committee  recommended  that  they  be  disallowed,  and  the 
Privy  Council  complied  by  an  order  in  council  of  the  same 
date.* 

1 C.  S.  P.,  1689-92,  p.  730. 

25.  T.  /.,  vol.  viii,  pp.  10,  16,  22,  26,  29.  CO/s-906,  pp.  187,  194. 
C.  6".  P.,  1693-6,  pp.  497,  498. 

'  B.  T.  /.,  vol.  viii,  pp.  52,  125. 

^26  December  1695;  C.  S.  P.,  1693-6,  p.  633.  CO/5-906,  pp.  206,  209. 
(i)  "Coasting  Vessels  within  the  Province"  and  (2)  "To  Restrain  the 
Export  of  Raw  Hides." 


36  REVIEW  OF  COLONIAL  LEGISLATION  [454 

The  report  of  the  committee  upon  the  remainder  of  these 
acts  was  made  in  February,  1696,  and  in  accordance  with 
its  recommendations  several  of  them  were  disallowed  by 
the  council  in  the  following  December.  After  noting  a  dis- 
crepancy between  an  act  for  establishing  courts  and  a  for- 
mer law  of  the  colony  upon  the  same  subject,  the  report 
continues:  "Agree  to  represent  the  matter  especially  in 
Council."  This,  again,  would  indicate  deliberation  in  the 
Council  meetings,  as  well  as  a  tendency  upon  the  commit- 
tee's part  to  defer  the  solution  of  difficult  problems  to  their 
superior  body.^ 

The  grants  to  the  proprietors  of  Carolina  and  Maryland 
empowered  them  to  make  laws  with  the  consent  of  the  free- 
men, stipulating  that  such  legislation  should  be  consonant 
to  reason  and  not  repugnant  to  the  laws  of  England.^ 
Nothing  was  said  regarding  submission  to  the  Privy  Coun- 
cil. By  virtue  of  their  control  over  the  governor  and  his 
veto,  therefore,  the  proprietors  possessed  virtually  a  double 
check  upon  the  legislation  of  their  colonies,  while  the  king 
in  council  had  none.  In  response  to  general  inquiries  re- 
garding the  state  of  his  province,  Charles  Lord  Baltimore 
responded  in  1678:  "The  Laws  are  generally  temporary, 
and  continue  only  for  three  years.  Where  the  exigencies 
of  the  Province  do  not  force  any  particular  laws  to  be  made, 
no  other  laws  are  used  than  those  of  England."  Copies  of 
Maryland  acts  were  sent  to  the  Privy  Council  more  or  less 
regularly,  but  no  action  was  taken  upon  laws  from  this 
colony  until  it  became  a  royal  province  in  1692.  One  act 
of  Carolina,  however,  for  "  Restraining  Privateers  and 
Pirates  "  was  drafted  by  the  committee  and  passed  by  the 
assembly  at  its  request.^ 

» Report,  CO/5-859,  p.  II. 

2  J^.Tacdonald,  Select  Charters,  pp.  53,  120. 

»  B.  T.  /.,  vol.  iv,  p.  272.    C.  5'.  P.,  1685-8,  p.  338. 


455]  INTRODUCTORY  2,7 

The  preliminary  draft  of  Perm's  charter,  based  upon  that 
of  Maryland,  granted  legislative  powers  under  like  condi- 
tions except  that,  in  time  of  emergency,  the  proprietor  alone 
could  issue  ordinances.  When  this  draft  was  submitted  to 
Lord  Chief  Justice  North,  he  observed:  'There  wants  a 
clause  to  enable  the  King  within  [blank]  years  to  repeal 
the  laws  and  ordinances  of  either  sort."  ^  The  final  draft 
of  the  Pennsylvania  charter,  accordingly,  provided  that  a 
duplicate  of  laws  should  be  delivered  to  the  Privy  Council 
within  five  years  after  their  passing.  Acts  disallowed  within 
six  months  of  their  presentation  were  to  become  void; 
otherwise  to  remain  in  force  unless  they  expired  of  their 
own  limitation  or  were  repealed  by  the  assembly.^  Thus,, 
by  virtue  of  a  charter  granted  just  as  the  general  drift 
toward  the  royal  province  was  setting  in,  Pennsylvania  be- 
came the  only  proprietary  government  whose  laws  werc: 
subject  to  review  by  the  Privy  Council.  Because  of  the  dis- 
parity between  the  time  allowed  the  colony  for  the  presen- 
tation of  its  laws  and  the  short  term  within  which  they  had 
to  be  examined,  this  arrangement  proved  far  from  satisfac- 
tory to  the  English  government. 

Despite  the  proprietor's  instructions  to  the  governor  that 
the  laws  be  collected  and  "  sent  over  in  a  stitcht  book,"  ^ 
some  two  hundred  acts  passed  during  the  first  eleven  years 
of  the  colony's  existence  had  never  been  transmitted  when 
Fletcher  assumed  the  governorship  by  royal  appointment 
in  1693.  K^  declared  them  invalid  because  they  had  never 
been  submitted  for  approval,  and  because  he  conceived 
Penn's  charter  to  have  been  contrary  to  the  laws  of  Eng- 
land, and  consequently  invalid.*    The  assembly  afterwards 

*  C.  S.  P.,  1677-80,  pp.  629,  6z2 ;  November  1680. 

2  Pa.  Charters  and  Laws,  vol.  i,  of  the  Statutes  at  Large,  p.  84. 
'  Instructions  to  Blackwell,  Pa.  Records,  vol.  i,  p.  318,  1689. 

*  Pa,  Stats,  at  Large,  vol.  i,  appendix,  pp.  547,  548. 


-38  REVIEW  OF  COLONIAL  LEGISLATION  [436 

presented  to  the  governor  a  "  Petition  of  Right,"  citing  the 
terms  of  the  former  charter  and  asking  that  the  adminis- 
tration of  justice  be  agreeable,  for  the  time  being,  to  eighty- 
six  of  the  rejected  laws  therein  enumerated.  To  this  Gov- 
pernor  Fletcher  agreed.  Many  of  these  acts  were  subse- 
quently re-enacted  and  considered  by  the  Board  of  Trade, 
after  1696/ 

Thirty  acts  passed  by  Fletcher  in  May,  1693,  were  duly 
transmitted,  and  were  referred  to  the  attorney  general,  with 
the  request  that  he  report  upon  them  in  order  that  they 
might  be  considered  by  the  committee,  together  with  a  peti- 
tion from  Penn  asking  reinstatement  to  the  proprietorship. 
The  attorney  general  rendered  a  formal  report,  taking  ex- 
ception to  three  of  the  laws.^  On  August  9,  1694,  after 
consultation  between  the  committee,  Penn  and  the  attorney 
general,  the  former  reported  favorably  upon  Penn's  peti- 
tion. It  was  recommended  also  that  twenty  of  the  acts  be 
confirmed,  two  repealed,  and  that  six  be  returned  to  the 
assembly  for  further  consideration.  Penn,  as  Proprietor, 
agreed  that  the  latter  should  be  in  force  until  altered  or  re- 
voked by  the  assembly.  This  arrangement  was  sanctioned 
by  an  order  in  council  on  August  9,  1694.* 

Perhaps  the  most  important  addition  to  the  machinery  of 
legislative  review  made  during  this  period  was  the  custom 
of  referring  colonial  legislation  to  the  legal  advisers  of  the 
crown,  for  an  opinion  as  to  its  fitness  "  in  point  of  law." 
In  the  first  recorded  instance  several  Jamaica  laws  were 
^dispatched  to  the  attorney  general,  together  with  the  obser- 

■*  Pa.  Stats,  at  Large,  vol.  i,  pp.  188-190,  220. 

''There  is  attached  a  postscript  by  Penn  stating  his  objections  to  still 
another.  He  probably  consulted  with  the  attorney  before  the  latter 
,rendered  his  report.    CO/5-1236,  p.  49;  25  July  1694. 

«  CO/5-1 1 14,  P-  134.    B.  T.  /.,  vol.  vii,  p.  309.    CO/5-1236,  pp.  48*  60. 


457]  INTRODUCTORY  39 

vations  of  the  committee  upon  them/  This  constitutes  the 
only  instance  in  which  a  number  of  laws  were  referred  after 
having  been  considered  at  length  by  the  committee.  Sub- 
sequently it  became  customary  for  the  committee  to  refer 
acts  to  the  law  officer  at  once,  and  to  consider  them  later  in 
the  light  of  his  recommendations. 

Two  months  later  the  attorney  and  solicitor  general  ren- 
dered each  a  separate  report  as  to  the  conformity  of  certain 
Massachusetts  laws  with  the  terms  of  the  charter.  Although 
these  acts  had  been  referred  only  to  the  solicitor,  both  offi- 
cials rendered  a  report,  and  it  was  the  attorney  who  appeared 
in  person  before  the  committee  when  the  matter  was  under 
discussion  there.^  In  1679  the  acts  of  Barbadoes  were  re- 
ferred to  Mr.  Serjeant  Baldwin,  *'  one  of  His  Majesty's 
Councill  Learned  in  the  Law."  ^  Why  they  were  sent  to 
him  rather  than  to  the  attorney  or  solicitor  general  does 
not  appear.  A  few  months  later  the  committee  ordered  a 
private  act  of  Barbadoes  ''to  Mr.  Attorney  for  his  opinion, 
as  is  usual  in  like  cases."  *  Thenceforth  until  1696  laws 
were  sent,  in  the  ordinary  course  of  events,  to  the  attorney 
general;  while  matters  of  unusual  difficulty  or  importance 
were  referred  jointly  to  the  attorney  and  solicitor  generals.^ 
Thus,  the  attorney  and  solicitor  reported  jointly  regarding 
the  extent  of  Penn's  rights  under  the  Pennsylvania  charter, 

1  Supra,  p.  24. 

^A.  P.  C,  vol.  i,  p.  725;  20  July  1677.    B.  T.  /.,  vol.  ii,  p.  loi. 
M.  P.  C,  vol.  i,  p.  857.    C.  S.  P.,  1677-80,  p.  401.    B.  T.  J.,  vol.  iii, 
p.  174. 

*  B.  T.  /.,  vol.  iii,  p.  88 ;  6  November  1679. 

*  For  example,  a  question  as  to  the  royal  power  of  making  laws  for 
Jamaica,  and  whether  the  disallowance  of  a  law  by  order  in  council 
revived  a  former  law  repealed  by  the  act  disallowed.  The  solicitor 
alone  rendered  one  report,  concerning  a  dispute  between  Lord  Balti- 
more and  the  Maryland  assembly,  over  a  duty  on  tobacco.  A.  P.  C, 
vol.  ii,  pp.  6,  142,  246. 


40  REVIEW  OF  COLONIAL  LEGISLATION  [^^g 

while  at  the  same  time  the  attorney  alone  reported  upon  the 
Pennsylvania  laws/  During  this  period  the  attorney  not 
only  rendered  a  written  report  upon  laws,  but  also  appeared 
in  person  before  the  committee  when  they  came  up  for  con- 
sideration there.  Subsequently  this  practice  was  discon- 
tinued, the  Board  of  Trade  contenting  itself,  in  most  cases, 
with  a  written  report. 

Upon  special  matters,  the  committee  often  obtained  ad- 
vice and  assistance  of  other  officials.  The  lord  chief  jus- 
tice helped  to  work  out  a  compromise  in  the  controversy 
with  the  Jamaica  assembly,  and  reported  upon  the  draft  of 
Penn's  patent  for  Pennsylvania.^  The  lord  chancellor  and 
the  lord  treasurer  were  asked  to  assist  at  the  committee  in 
connection  with  the  Jamaica  laws;  and  certain  acts  passed 
under  the  old  charter  of  Massachusetts  were  referred  to 
the  lord  chancellor  alone.  ^  Revenue  acts  for  Jamaica  and 
Virginia  were  drafted  by  the  commissioners  of  customs; 
and  laws  concerning  trade,  manufacture  or  shipping  were 
generally  referred  to  them  through  the  lords  commissioners 
of  the  treasury.*  A  memorial  from  the  Lord  Bishop  of 
London  was  considered  in  connection  with  the  drafting  of 
a  Jamaica  act  for  the  "  Maintenance  of  the  Ministry,"  but 
the  participation  of  that  office  in  the  review  of  colonial 
legislation  was  of  little  consequence  prior  to  1696. 

The  governor's  commissions  and  instructions — the  near- 

1 C.  S.  P.,  1693-6,  pp.  310,  313 ;  July  1694. 

2  B.  T.  /.,  vol.  iii,  p.  215.    C.  S.  P.,  1677-80,  p.  632. 

» C.  S.  P.,  1677-80,  p.  65.    B.  T.  /.,  vol.  vi,  p.  82. 

*  C.  S.  P.,  1681-5,  pp.  157,  529.  The  report  of  the  customs  upon  acts 
of  Virginia  for  establishing  "  Ports  &  Towns  "  and  "  Reviving  an  act 
for  Manufactures  "  was  endorsed  by  the  commissioners  of  the  treas- 
ury, and  when  the  assembly  refused  to  amend  them  as  the  committee 
recommended,  the  whole  matter  was  re-referred  to  the  treasury.  C.  S.  P., 
1689-92,  p.  611.  CO/5-1358,  p.  162.  B.  T.  /.,  vol.  vii,  pp.  104,  328; 
29  June  1692. 


459]  INTRODUCTORY  4 1 

est  approach  to  a  fundamental  law  in  the  royal  colonies — 
empowered  the  governor,  council  and  assembly,  under  vary- 
ing restrictions,  to  make  laws  which  should  be  subject  to 
royal  disallowance.  The  subsequent  demand  of  the  Eng- 
lish authorities  that  the  Jamaica  assembly  adopt  unaltered 
acts  drafted  in  England,  constituted  a  violation  of  a  pre- 
vious concession  which  rendered  the  government's  position 
politically,  if  not  legally,  untenable.  Other  acts  of  the  king 
in  council  prior  to  1696  were  contrary  to  the  fair  implica- 
tions of  this  grant,  if  not  precluded  by  its  express  ternis. 
Such,  for  example,  were  the  disallowance  of  clauses  in  the 
revenue  acts  of  Barbadoes  and  Virginia,  and  the  insertion, 
in  a  private  act  of  Barbadoes  for  the  sale  of  lands,  of  a 
clause  safeguarding  the  rights,  both  of  the  crown  and  of 
certain  heirs  to  the  property  affected.^  Under  Charles  II, 
Lord  Howard  of  Effingham,  when  governor  of  Virginia, 
was  instructed  to  repeal  three  acts  "when  convenient,"  and 
acordingly  the  laws  were  declared  void  by  a  proclamation 
of  the  governor,  without  the  customary  order  in  council. 
Some  three  years  later  the  assembly  complained  of  this 
proceeding  as  "unwarrantable,"  and  asked  that  the  procla- 
mation repealing  an  act  regarding  attorneys  be  revoked.^ 
When  the  matter  was  referred  to  the  attorney  and  solicitor 
generals,  they  simply  assumed  the  legality  of  the  proclama- 
tion, and  rendered  an  opinion  that  it  revived  a  previous  law 

*  This  act  was  for  "  Enabling  John  Kirton  to  Sell  certain  Lands 
for  the  Payment  of  his  Debts."  The  committee  probably  knew  that 
the  parties  interested  had  no  objection.  A.  P.  C,  vol.  ii,  265.  C.  S.  P., 
1693-6,  pp.  219,  247,  276;  8  February  1694. 

'^  These  acts  had  to  do  with  (i)  the  export  of  iron,  (2)  the  manu- 
facture of  linen,  and  (3)  attornies.  Early  in  1678  Lord  Howard  wrote 
to  the  committee:  the  assembly  "boldly  dispute  the  King's  authority 
in  the  repealing  of  laws  by  proclamation."  The  animus  of  the  as- 
sembly's objection  seems,  however,  not  so  much  the  fact  of  their  having 
been  repealed  by  proclamation,  as  the  loss  of  popular  laws.  CO/5-1356, 
p.  268.    CO/5-1357,  P-  125.    A.  P.  C,  vol.  ii,  p.  142. 


42  REVIEW  OF  COLONIAL  LEGISLATION  [460 

which  the  assembly  had  repealed  in  the  act  thus  disallowed ; 
while  the  committee  suggested  that  the  objectionable  act 
thus  revived  "  might  be  repealed  by  a  like  proclamation."  ^ 
The  Privy  Council,  however,  made  little,  if  any,  further  use 
of  this  method  of  disallowance. 

In  the  case  of  several  Virginia  laws  the  council  refused 
to  take  definite  action,  and  simply  decreed  that  their  execu- 
tion should  be  wholly  or  partially  "  suspended."  Thus  it 
was  ordered  that  an  act  "  to  enable  Major  Lawrence  Smith 
and  Captain  William  Bird  to  seate  certain  Lands "  be 
''forthwith  suspended;  and  no  proceedings  had  thereon  till 
His  Majesty  shall  signify  his  further  pleasure."  As  no 
further  action  was  taken  in  the  matter,  the  law  stood  vir- 
tually repealed.^  An  act  for  the  ''Encouragement  of  Trade 
and  Manufacture"  condemned  as  impractical  by  the  com- 
missioners of  customs,  was  sent  back  to  the  colony  for  re- 
consideration, with  an  order  that  the  clause  fixing  the  time 
of  its  enforcement  as  to  the  landing  of  goods  and  shipment 
of  tobacco  "be  immediately  suspended."  ^  The  Privy  Coun- 
cil took  like  action  upon  two  laws,  ( i )  for  "  Ports  and 
Towns,"  and  (2)  "  Reviving  a  former  Act  regarding 
Manufactures,"  passed  ten  years  later,  except  that  in  the 
latter  case  it  wholly  suspended  the  operation  of  the  laws  in 
question.*  The  important  subject-matter  of  these  acts,  to- 
gether with  the  fact  that  they  were  to  go  into  operation  at 

1  CO/5-1357,  p.  219.  C.  S.  P.,  1689-92,  p.  78.  B.  T.  /.,  vol.  vi,  p.  254. 
In  1716  Secretary  Cook  of  Virginia  in  writing  to  the  Board  mentions 
an  act  of  1676  regarding  tobacco  payments,  and  says :  "  In  spite  of 
repeal  by  Proclamation,  lawyers  think  the  clause  regarding  who  shall 
not  bear  office  is  still  in  force."    B.  T.  J.,  vol.  xxvi,  p.  40. 

M.  P.  C,  vol.  i,  p.  861 ;  6  August  1679. 

»  CO/S-1356,  pp.  3,  4.  C.  S.  P.,  1681-5,  pp.  157.  158;  21  December  1681. 
Hening,  Statutes,  vol.  ii,  p.  508. 

*The  Assembly  refused  to  take  further  action.  CO/5-1358,  p.  272; 
10  October  1693. 


461]  INTRODUCTORY  43 

a  future  date,  goes  far  to  explain  why  this  action  was  taken. 
The  more  legitimate  course,  and  the  one  which  ultimately 
prevailed,  was  that  taken  in  1685  in  regard  to  a  Virginia 
law  for  "  Holding  Courts."  This  was  neither  confirmed 
nor  disallowed,  but  simply  permitted  to  remain  in  force,  the 
governor  being  instructed  to  propose  to  the  assembly  the 
passing  of  an  amendment  to  safeguard  the  rights  of  the 
crown.  ^  In  like  manner  six  Pennsylvania  acts  were  re- 
turned to  the  colony  for  reconsideration,  with  the  express 
understanding  that  they  continue  in  force  until  repealed  or 
amended  there.  ^  Theobject  of  the  government  m,  these 
cases  was  to  avoid  the  illfeelinp-  and  inconveniences  result- 
ing  from  the  disallowance  of  law^s  beneficial  in  intent,  by 
inducing  the  assemblies  themselves  to  eliminate  certain  ob- 
jectionable features^ 

Attempts  to  impose  laws  unaltered  upon  the  assemblies, 
or  to  repeal  acts  except  in  their  entirety  and  by  order  in 
council,  were  a  natural  outw^orking  of  the  policy  of  Charles 
II.  Both  ceased,  for  the  most  part,  with  his  reign;  while 
after  the  "  Glorious  Revolution "  there  w^as  a  complete 
tolerance  of  the  assemblies  and  a  fairly  scrupulous  respect 
for  their  autonomy. 


^g^3Jlrf^^■r^.:fmsr,VA^ 


1  C.  S.  p.,  1681-5,  p.  747.    B.  T.  /.,  vol.  V,  54.    Instructions,  CO/5-1357, 
p.  20;  13  August  1685. 
^CO/5-1114,  p.  134;  9  August  1694. 


CHAPTER  II 

The  Procedure  of  the  English  Government  in  Legis- 
lative Review — The  Board  of  Trade  and  Com- 
mittee OF  the  Council 

In  May,  1696,  the  old  committee  of  the  Privy  Council 
was  dissolved  and  the  center  of  English  colonial  adminis- 
tration was  shifted  to  the  newly-formed  "  Lords  of  Trade 
and  Plantations,"  ^ore  commonly  known  as  the  "  Board 
of  Trade."  ^  Although  subject  to  vicissitudes  in  influence 
and  efficiency,  this  body  continued,  until  its  final  dissolution 
eighty-six  years  later,  to  be  the  chief  adviser  of  the  Privy 
Council  in  matters  relating  to  trade  and  plantations.  In 
addition  to  numerous  other  activities,  it  examined  all  acts 
received  from  the  colonies.  It  heard  complaints  regarding 
them  from  persons  who  felt  that  their  interests  were  ad- 
versely affected.  It  obtained  from  the  law  officers  of  the. 
crown  an  opinion  as  to  their  legality  and,  if  necessary,  re- 
ferred them  to  other  departments  of  the  government  for  a 
special  report  as  to  their  probable  effect  and  expediency. 
In  the  light  of  information  thus  obtained,  the  Board  of 
Trade  formally  advised  the  Privy  Council  regarding  the 
confirmation  or  disallowance  of  the  acts  considered.  And 
in  the  great  majority  of  cases  its  recommendations  were 

^  Books  and  papers  in  the  plantation  office  relating  to  the  committee 
on  trade  and  plantations  were  ordered  to  be  delivered  to  Popple,  Secre- 
tory of  the  new  board,  "  and  all  matters  depending  before  the  former 
Committee  to  be  referred  to  the  said  Council  of  Trade."  The  appellate 
jurisdiction  of  the  Privy  Council,  however,  was  retained  in  a  standing 
committee  of  the  Council.  A.  P.  C,  vol.  ii,  p.  299;  7  July  1696. 
44  [462 


463]  PROCEDURE  IN  REVIEW  4^ 

accepted  and  made  effective  by  orders  in  council.  A  study 
of  the  administrative  machinery  and  the  procedure  by  which 
the  English  government  scrutinized  colonial  legislation, 
therefore,  begins  naturally  with  some  account  of  the  his- 
tory, functions  and  working  habits  of  the  Board  of  Trade. 
The  formation  of  the  Board  of  Trade  was  due  to  a 
movement  in  Parliament  inspired  by  the  English  merchants 
for  the  appointment  of  a  special  board  of  experts  for  colo- 
nial and  commercial  affairs.^  The  crown  opposed  this 
project  as  an  encroachment  upon  its  prerogative;  but  as  a 
concession  to  t|ie  sentiment  of  Parliament,  it  commissioned 
the  new  Council  of  Trade  and  Plantations,  with  a  salaried 
membership  controlled  not  by  Parliament,  but  by  itself. 
The  first  Board  was  composed  of  the  eight  officers  of  state; 
the  lord  chancellor,  the  lord  president,  the  lord  treasurer, 
the  lord  high  admiral,  the  principal  secretaries  of  state  and 
the  chancellor  of  the  exchequer;  together  with  eight  mem- 
bers of  Parliament,  two  lords  and  six  commoners,  who 
were  more  or  less  versed  in  colonial  affairs.  Among  the 
members  of  the  first  Board  were  William  Blathwayt,  who 
had  been  secretary  of  the  old  committee  for  trade  and  plan- 
tations, John  PoUexfen,  brother  of  the  chief  justice  and  a 
merchant  of  the  city,  John  Locke,  the  philosopher,  who  was 
interested  in  Carolina,  and  Abraham  Hill,  whose  collections 
on  trade  and  colonies  were  later  deposited  in  the  British 
Museum.^  Any  three  members  constituted  a  quorum,  while 
the  great  officers  attended  only  when  summoned  to  a  "full 
Board"  for  the  consideration  of  important  matters.^     The 

*  Andrews,  a  study  of  "  British  Committees,  Commissions  and  Councils 
of  Trade  and  Plantations,"  in  the  /.  H.  U.  Studies,  vol.  xxvi,  pp.  9-151. 

^  N.  Y.  Col.  Docs.,  vol.  iii,  Introd.,  p.  xv.  Chalmers,  George,  Opinions 
of  Eminent  Lawyers  on  points  of  English  Jurisprudence,  (Burlington, 
N.  J.,  1858),  p.  7,  note. 

'  In  1702  the  Bishop  of  London  was  added  to  those  "  not  obliged  to 
constant  attendance."    They  were  expected  to  attend  "  onh'  so  often 


46  REVIEW  OF  COLONIAL  LEGISLATION  [464 

greater  part  of  the  work  was  done  by  the  more  active  among 
the  commoners — usually  a  group  of  from  three  to  five.  A 
secretary,  appointed  by  the  crown,  and  several  clerks,  ap- 
pointed by  the  Board  itself,  performed  a  great  amount  of 
routine  business  and  carried  on  the  ordinary  work  of  the 
office  when  their  lordships  were  not  in  session/  At  differ- 
ent times,  Matthew  Prior  the  poet  and  playwright,  Addi- 
son the  essayist,  and  Gibbon  the  historian  were  members. 
Although  the  average  duration  of  membership  was  consid- 
erably less,  several  influential  commissioners  spent  over 
fifteen  years  in  the  service.  Such  were  Paul  Docminique, 
Thomas  Pelham  and  Saome  Jenyns.  Martin  Bladen  and 
Thomas  Ashe  sat  twenty-nine  and  twenty-six  years,  re- 
spectively. 

During  the  first  sixteen  years  of  its  existence  the  Board 
of  Trade  showed  great  activity  and  enjoyed  much  influence. 

,  Meetings  were  frequent  and  well  attended,  and  the  scrutiny 
accorded  colonial  laws  was  comparatively  prompt  and  ex- 

/  acting.    Amid  the  uncertainty  and  party  struggle  of  the  last 


f. 


[ 


I  two  years  of  Queen  Anne,  however,  this  vigilance  relaxed 
and  its  activity  was  confined  largely  to  matters  of  trade.  ^ 

as  when  the  presence  of  them  or  any  of  them  shall  be  necessary  and 
requisite  and  as  their  other  public  service  will  permit."  N.  Y.  Col. 
Docs.,  vol.  iv,  p.  148. 

*  For  a  full  account  of  the  Board's  organization  see  an  article  en- 
titled "The  Board  of  Trade  at  Work"  by  Mary  P.  Clarke,  in  the 
Am.  Hist.  Review,  vol.  xvii,  p.  17,  October  191 1. 

^  An  anonymous  pamphlet  of  1755  styled  A  Miscellaneous  Essay, 
which  is  in  the  British  Museum,  says :  "  The  Opposition  given  to  those 
employed  in  the  administration  of  public  affairs,  in  the  latter  end 
of  Queen  Anne's  reign,  and  the  struggles  for  power,  which  then  sub- 
sisted, did,  in  a  great  measure,  take  off  the  attention  of  the  Ministry 
from  the  concerns  of  America.  From  which  cause  the  reports  of  the 
Board  of  Trade  were  often  silenced,  and  lay  in  the  Secretary's  Office, 
without  any  notice  taken  of  them.  *  Such  persons  as  had  any  concerns 
depending,  in  relation  to  America  began  to  apply  to  the  Council  Board, 
or  to  the  Treasury  or  Admiralty,  as  the  nature  of  the  business  might 
require." 


465]  PROCEDURE  IN  REVIEW  47 

The  accession  of  George  I  and  the  triumph  of  the  Whigs 
in  1 714  resulted  in  a  complete  change  of  membership/  and 
throughout  the  era  of  Walpole  the  efficiency  of  the  Board 
steadily  declined,  to  continue  at  a  low  ebb  for  several  years 
under  the  government  of  Newcastle.^  This  state  of  affairs 
was  the  result  partly  of  the  laxity  of  the  secretary  of  state 
and  the  Whig  administration,  and  partly  of  a  renewed  and 
increasing  activity  and  influence  upon  the  part  of  the  com- 
mittee of  the  Privy  Council.  In  1752  the  colonial  gover- 
nors were  directed  to  address  their  general  correspondence 
directly  to  the  Board  of  Trade,  instead  of  in  duplicate,  as 
had  been  the  custom  previously,  to  the  Board  and  to  one  of 
the  principal  secretaries  of  state. ^  As  a  result  of  this 
order  the  Board  transacted  more  business  and  enjoyed  for 
several  years  a  revival  of  its  former  prestige.  At  the  be- 
ginning of  the  next  decade,  however,  its  action  had  again> 
become  indecisive  and  dilatory,  and  it  was  further  weak- 
ened by  the  loss  of  its  power  to  nominate  colonial  officers.* 
By  an  order  in  council  of  August  8,  1766,  the  commission- 
ers were  directed  to  consider  in  the  future  only  such  matters 
as  were  referred  to  them  by  the  Privy  Council  or  one  of 
the  principal  secretaries  of  state.  At  the  same  time  the 
governors  were  instructed  to  correspond  with  the  secretary 

^N.  Y.  Col.  Docs.,  vol.  iii,  Introd.,  p.  xvi.  In  place  of  Meadows, 
Monckton  and  Moore,  who  had  been  long  active,  Chetwynd,  Cooke, 
Docminique  and  Bladen  became  the  leading  spirits  at  the  Board.  Martin 
Bladen  was  appointed  July  13,  1717. 

* "  The  Board  of  Trade  during  Sir  Robert  Walpole's  administration 
had  very  faultily  been  suffered  to  lapse  almost  into  a  sinecure,  and 
during  all  that  period  the  Duke  of  Newcastle  had  been  Secretary  of 
State.  It  would  not  be  credited  what  reams  of  papers,  representations, 
memorials,  petitions  from  that  quarter  of  the  world  lay  mouldering  and 
unopened  in  his  office."    Memoirs  of  George  II,  vol.  i,  p.  396. 

3  J5.  T.  I.,  vol.  lix;  11  March,  1752.    A.  P.  C,  vol.  iv,  p.  156. 

*B.  T.  J.,  vol.  Ixviii,  p.  265;  15  May  1761. 


48  REVIEW  OF  COLONIAL  LEGISLATION  [466 

of  state,  sending  duplicates  only  to  the  Board.  These 
orders,  which  originated  in  the  desire  of  Pitt  to  reduce  the 
evils  of  a  divided  responsibility  in  colonial  administration, 
deprived  the  Board  of  initiative  and  reduced  it  to  a  mere 
advisory  and  consulting  body/  Lord  Hillsborough  was 
now  commissioned  as  "  Secretary  of  State  for  the  Colo- 
nies," and  thereafter  he  and  his  successors  sat  as  presidents 
of  the  Board,  directing  its  activities  with  no  uncertain  hand. 
Many  journal  entries  of  this  period  begin  with  the  state- 
ment: "The  Earl  of  Hillsborough  laid  before  the  Board," 
while  the  drafting  of  letters  to  the  governors  regarding 
legislation  was  left  almost  entirely  to  his  discretion.  The 
weakness  of  the  Board  is  occasionally  shown,  also,  by  a 
tendency  to  state  the  points  for  and  against  a  law,  without 
itself  making  any  definite  recommendation  for  confirma- 
tion or  disallowance.^  Until  finally  abolished  in  1782,  its 
initiative  and  vitality  remained  at  a  very  low  ebb. 

The  commission  of  the  Board  of  Trade  empowered  it  to 
assume  a  general  oversight  over  colonial  legislation.  Among 
other  duties,  it  was  "  to  examine  into  and  weigh  such  Acts 
of  the  Assemblies  ...  as  shall  from  time  to  time  be  trans- 
mitted ;  and  to  .  .  .  represent  .  .  .  the  Usefulness  or  mis- 
chief thereof  to  our  Crown,  and  to  our  Kingdom  of  Eng- 
land, or  to  the  Plantations  themselves,  in  case  the  same 
shall  be  established  for  Lawes  there;  and  also  to  consider 
what  matters  may  be  recommended  as  fitt  to  be  passed  in 
the  Assemblys  there."  ^     In  other  words,  the  Board  might 

^B.  T.  /.,  vol.  Ixxiii,  pp.  299,  337.  Fitzmaurice,  Life  of  William, 
Earl  of  Shelburne,  (London,  1876),  vol.  ii,  pp.  1-3.  Andrews,  "British 
Committees,  Commissions  and  Councils  of  Trade  and  Plantations," 
/.  H.  U.  Studies,  vol.  xxvi,  pp.  113,  114. 

» CO/S-1296,  p.  3^3-    ^.  P'  C.,  vol.  V,  p.  163. 

»  N.  Y.  Col.  Docs.,  vol.  iv,  p.  147;  6  July  1697.  B.  T.  I.,  vol.  xii,  p.  74- 
The  Board's  first  commission  issued  May  15,  1696  was  renewed  from 
time  to  time. 


467]  PROCEDURE  IN  REVIEW  49 

examine,  consider  and  make  reports  to  the  Privy  Council, 
but  of  real  executive  power  it  had  very  little.  In  important 
matters  its  wishes  were  binding  upon  no  one  unless  em- 
bodied in  an  order  of  the  Privy  Council. 

The  Board,  probably  because  of  other  duties,  did  not  un- 
dertake the  examination  of  colonial  laws  until  some  months 
after  its  formation.  Among  the  books  and  papers  be- 
queathed to  it  by  the  former  committee  of  trade  and  planta- 
tions were  certain  acts  of  Massachusetts,  together  with  an 
opinion  of  the  attorney  general  and  the  draft  of  a  com- 
mittee report  upon  them.  These  the  Board  examined  at 
several  meetings  in  October,  1696.  A  report  urging  the 
repeal  of  the  two  laws  was  signed  on  November  5,  and  on 
the  following  day  it  was  announced,  apparently  not  with- 
out satisfaction,  that  his  majesty,  at  a  council  held  the  pre- 
vious evening,  had  "  entirely  approved  "  their  "  represen- 
tation "  regarding  the  Massachusetts  laws.  Several  days 
later  an  engrossed  copy  of  the  order  in  council  repealing 
these  acts  was  brought  to  the  Board  from  the  clerks  of  the 
Privy  Council.  After  having  the  order  read,  the  Board 
directed  its  secretary  to  deliver  it  to  the  agent  for  Massa- 
chusetts and  to  obtain  a  receipt  for  it.^ 

The  Board  of  Trade  received  laws  sometimes  by  refer- 
ence from  the  Privy  Council,  but  usually  by  letter  directly 
from  the  governor.^    Upon  days  allotted  to  the  considera- 

^B.  T.  J.,  vol.  ix,  pp.  191,  192,  206,  211,  242. 

2  After  1735  the  former  course  was  followed  in  the  case  of  laws  of 
Pennsylvania  and  Massachusetts,  both  of  which  colonies  were  compelled 
by  charter  to  submit  their  enactments  to  the  Privy  Council.  All  acts 
passed  during  one  session  of  a  provincial  assembly  were,  as  a  rule, 
transmitted  together,  each  separate  law  bearing  an  imprint  of  the 
provincial  seal  in  wax.  After  1766  acts  as  well  as  other  communica- 
tions were  sent  by  the  colonies  to  the  secretary  of  state,  and  by  him 
were  brought  or  sent  to  the  Board  of  Trade.  B.  T.  /.,  vol.  Ixxiv, 
pp.  43,  III. 


50  REVIEW  OF  COLONIAL  LEGISLATION  [468 

tion  of  colonial  legislation/  the  secretary  presented  to  their 
lordships  acts  lately  received,  noting  the  colony  whence 
they  came  and  the  date  of  their  passage.  At  first  the  Board 
was  accustomed  to  read  the  laws  at  this  time,  laying  aside 
such  as  were  found  to  be  temporary  or  expired.  But  this 
practice  was  soon  discontinued,  and  upon  their  presentation 
the  secretary  was  at  once  authorized  to  send  them  to  the 
law  officer.^ 

After  being  returned  with  a  report  "  in  point  of  law," 
acts  were  considered  by  the  Board  of  Trade.  Each  in  turn 
appears  to  have  been  read  aloud,  probably  by  the  secretary,, 
and  to  have  been  made  the  subject  of  discussion.^  Laws 
fell  naturally  into  three  classes,  those  which  were  ( i )  tem- 
porary or  expired,  those  (2)  unobjectionable,  and  (3)  those 
clearly  objectionable  or  of  doubtful  expediency.  If  diffi- 
cult or  important  questions  were  raised  by  the  latter,  their 
consideration  might  be  postponed  and  some  future  time  set 
for  a  hearing,  to  which  the  agent  of  the  colony  and  persons 
in  a  position  to  be  well  informed  regarding  the  law,  or  in- 
terested in  its  operation,  would  be  summoned. 

It  sometimes  happened  that  the  attention  of  the  Board 
was  first  called  to  particular  laws  by  petitions  from  persons 
whose  interests  were  effected  thereby.    The  merchants  trad- 

*  The  Board's  programme  varied  from  time  to  time.  In  171 7  it  fixed 
upon  the  following  routine :  "  Monday's  for  reading  letters  and  papers 
from  the  Colonies,  Tuesday  and  Wednesday  for  Plantation  business, 
Thursday  for  Trade,  and  Friday  for  Colonial  legislation."  B.  T.  ]., 
vol.  xxvi,  p.  438. 

2  By  this  term  was  meant  the  attorney  or  solicitor  general,  or,  after 
1718,  the  king's  counsel.  Subsequent  to  1755  presentation  by  the  Sec- 
retary became  so  much  a  matter  of  formality  that  he  often  referred 
acts  to  the  law  officer  at  once,  notifying  the  Board  of  his  action  at  their 
next  meeting.    B.  T,  /.,  vol.  Ixix,  p.  218. 

'  There  is  no  authoritative  statement  of  the  exact  course  pursued  by  the 
Board  in  considering  laws.  The  above  inferences  are  drawn  from  the 
wording  of  the  journal  entries. 


469]  PROCEDURE  IN  REVIEW  51 

ing  to  the  colonies  and  the  Quakers  were  particularly  active 
in  this  respect.     Such  petitions  were  addressed  not  to  the 
Board  but  to  his  majesty  in  council,  and  were  referred  to 
the  former  by  an  order  in  council.     In  1717  the  Board  re- 
fused to  receive  a  petition  presented  by  the  memorialist  and 
addressed  to  itself.    But  memorials  frequently  were  brought 
to  the  Board  and  presented  in  person  when  the  matter  at 
issue  was  already  in  due  course  under  consideration  there.  ^ 
If  the  petitioners  were  adverse  to  the  confirmation  of  the 
law,  the  agent  usually  presented  a  memorial  in  reply.     At 
first  the  contestants  seem  to  have  relied  mainly  upon  writ- 
ten briefs  for  the  presentation  of  their  cases,  attending  the-. 
Board  to  furnish  additional  information  when  desired.    But: 
hearings  gradually  became  more  formal  and  elaborate,  eachi 
side  being  represented  not  only  by  an  agent,  but  also  by  a. 
solicitor.     Thus,  to  cite  one  example  among  many,  when' 
in  1725  the  Board  considered  several  acts  of  New  York 
regarding  the  Indian  trade,  the  hearings  extended  over  sev- 
eral days  and  the  agent  for  the  province  and  a  solicitor  for 
the  merchants  each  addressed  their  lordships  at  consider- 
able length.     The  Board  also  examined  under  oath  ^  two 
fur-cutters  of  London  and  a  late  inhabitant  of  the  province, 
and  consulted  an  ex-governor.^     When  the  proprietors  of 
Pennsylvania  complained  of   several  acts  passed  by  the 

^B.  T.  /.,  vol.  xxvi,  pp.  196,  284.  Petitions  were  sometimes  made 
while  the  law  in  question  was  yet  with  the  law  officer,  or  even  before  it 
had  been  received  from  the  colony.  In  such  cases  petitioners  were 
assured  that  they  would  be  notified  in  ample  time  for  the  presentation  of 
their  case  when  the  act  came  before  the  Board  in  the  usual  course. 
A  more  speedy  consideration  of  the  matter  usually  resulted,  although 
the  Board  was  reluctant  to  take  up  acts  out  of  their  usual  order  with- 
out good  reason.    B.  T.  /.,  vol.  x,  p.  352. 

^  The  solicitor  general  rendered  an  opinion  in  1720  that  the  commis- 
sion of  the  Board  of  Trade  impowered  it  to  administer  an  oath  upon 
examination.    B.  T.  /.,  vol.  xxix,  p.  82. 

*B.  T.  J.,  vol.  xxxiv,  pp.  110-114,  122-155. 


52  REVIEW  OF  COLONIAL  LEGISLATION  [470 

assembly,  in  1760,  they  were  represented  by  the  attorney 
and  soHcitor  general;  while  for  the  colony  appeared  two 
agents,  one  of  whom  was  Benjamin  Franklin,  and  two 
solicitors/  The  procedure  observed  at  the  Board  upon 
these  occasions  seems  to  have  been  informal.  Usually  the 
petitioners  against  a  law  opened  the  discussion  and  its  de- 
fenders replied.  Sometimes  the  speakers  were  heard  in 
rebuttal.  Each  side  was  afforded  ample  opportunity  to 
present  its  case.  Indeed,  postponements  for  the  convenience 
of  one  or  more  of  the  parties  interested  were  so  common 
as  to  constitute  the  rule  rather  than  the  exception. 

At  the  conclusion  of  a  foniial  hearing,  the  non-members 
withdrew  and  the  Board  arrived  at  a  decision  on  the  ques- 
tions at  issue.  From  minutes  taken  down  during  the  dis- 
cussion the  secretary  composed  the  draft  of  a  report  or 
"  representation,"  which  he  submitted  to  the  Board  at  a 
subsequent  meeting.^     After  having  been  considered  and, 

*  B.  T  /.,  vol.  Ixvii,  pp.  136-138.  At  a  hearing  upon  a  North  Carolina 
act  in  1751  the  defenders  of  the  law  included  both  a  solicitor  and  a 
^counsel.  The  latter  refused  to  plead  when  it  appeared  that  his  op- 
ponents were  represented  by  a  solicitor  only;  and  they  agreed  to  pro- 
-cure  counsel.    B.  T.  J.,  vol.  Iviii,  pp.  43,  44. 

That  Board  "  hearings  "  were  regarded  somewhat  in  the  nature  of  a 
'4rial  at  law  is  shown  by  an  order  in  council  of  November  30,  1738.  This 
'directed  that  no  appeal  to  the  Council  against  reports  of  the  Board 
upon  hearings  of  parties  upon  plantation  affairs  should  be  admitted 
without  security  to  pay  cost.  B.  T.  /.,  vol.  xlvii,  pt.  ii,  p.  59.  A.  P.  C, 
vol.  iv,  p.  440. 

^  "At  first  there  seems  to  have  been  a  distinction  between  a  report 
and  a  representation.  The  latter  was  the  more  formal  paper  addressed 
to  the  King  in  Council,  while  a  report  was  less  formal  and  was  ad- 
^dressed  to  the  committee  of  the  Council.  As  time  went  on  and  the 
'Committee  came  to  act  in  place  of  the  Council,  the  words  were  used 
•more  or  less  interchangeably.  Thus  on  June  29,  1731,  the  Board  signed 
what  in  the  text  is  called  a  representation,  but  in  the  margin,  a  report. 
B.  T.  /.,  vol.  xli,  169.  Communications  to  the  Secretary  of  State  were 
usually  called  letters."  Qarke,  "  The  Board  of  Trade  at  Work,"  Atn. 
Hist.  Rv.,  vol.  xvii,  p.  36,  note  130. 


471  ]  PROCEDURE  IN  REVIEW  53 

perhaps  with  minor  alterations,  "  agreed  to,"  this  was  re- 
copied  or  "transcribed  fair"  by  one  of  the  clerks  and  signed 
by  the  members  who  chanced  to  be  present  on  the  following 
day,^  although  if  there  were  need  of  haste,  representations 
were  sometimes  written,  agreed  to  and  signed  at  a  single 
meeting.  The  great  majority  of  Board  reports  covered  acts 
passed  at  a  single  session  of  a  colonial  assembly.  But  they 
were  made,  as  well,  upon  single  acts,  upon  collections  of 
laws,  and  in  a  few  instances  upon  those  of  several  different 
colonies.  After  mentioning  such  laws  as  were  temporary, 
expired,  or  without  objection,  the  representation  called 
attention  to  those  which  were  objectionable,  usually  quoting 
at  length  from  the  opinion  of  the  law  officer,  and  conclud- 
ing with  a  definite  recommendation  that  they  be  disallowed, 
or  perhaps  that  they  be  permitted  to  remain  in  operation 
notwithstanding  their  defects. 

In  course  of  time  two  important  changes  occurred  in  the 
customary  procedure  of  review:  (i)  In  1718  a  special  offi;- 
cer  known  as  the  "  King's  Counsel  "  was  designated  to 
pass  upon  the  legality  of  colonial  legislation,  and  thence- 
forth, in  the  usual  course,  acts  were  referred  to  him  instead 
of  the  attorney  or  solicitor  general.  (2)  Early  in  the  cen- 
tury the  Privy  Council  gradually  relinquished  its  discretion 
in  confirming  the  recommendations  of  the  Board  of  Trade, 
to  a  committee  of  its  own  members,  and  the  Board,  in  con- 
sequence, addressed  the  majority  of  its  reports  to  that  body.^ 
After  1720,  therefore,  laws  received  by  the  Board  of  Trade* 

*  See,  for  example,  the  progress  of  a  New  York  act  at  the  Board  in 
1719;  B.  T.  /.,  vol.  xxviii,  pp.  244,  247,  249,  253.  Or  of  a  North  Carolina 
act  in  1761 ;  B.  T.  /.,  vol.  Ixviii,  pp.  Z7^,  379>  381,  395,  412. 

^As  a  matter  of  formality,  however,  practically  all  reports  of  the 
Board,  whether  addressed  to  the  Council  or  the  committee,  appear  to 
have  been  delivered  to  the  Council  and  by  it  referred  to  the  committee. 

'  Laws  received,  as  was  often  the  case,  by  the  Privy  Council  in  the 
first  instance,  were  referred  by  order  in  council  to  the  committee  and 
by  the  committee  to  the  Board. 


54  REVIEW  OF  COLONIAL  LEGISLATION  [472 

were  referred  at  once  to  the  king's  counsel.  The  Board, 
after  considering  the  acts,  together  with  the  law  report 
upon  them,  reported  to  the  committee,  and  the  latter,  in 
turn,  to  the  Privy  Council,  which  confirmed  the  recommen- 
dations of  the  committee  by  an  order  in  council. 

Having  signed  the  representation  upon  a  law,  the  Board 
had  no  further  part  in  its  review  ^  until  a  copy  of  the  order 
in  council  for  its  confirmation  or  disallowance  was  received 
from  the  Privy  Council  office.^  It  then  informed  the  gov- 
ernor, or  the  colonial  agent,  of  the  action  taken,  and  the 
reasons  for  it.  A  copy  of  the  order  in  council,  and  usually 
of  the  representation  or  of  the  law  report  as  well,  were  en- 
closed. 

Not  more  than  one-fourth  of  the  laws  considered  at  the 
Board  of  Trade  were  recommended  for  confirmation  or 
disallowance.  A  few  had  been  repealed  by  the  assemblies, 
and  many  had  expired  of  their  own  limitation  before  action 
upon  them  could  be  taken  by  the  government.  But  the 
^  majority  were  either  neglected  or  suffered  to  "  lye  by  pro- 

^Two  exceptions  may  be  made  to  this  statement,  (i)  If,  after  the 
Board  had  made  its  report,  a  new  petitioner,  whose  case  had  not  been 
heard,  appeared  before  the  committee  of  the  Council,  or  if  some 
question  arose  upon  which  additional  information  was  desired,  the 
whole  matter  might  be  re-referred  to  the  Board  for  reconsideration. 
This  occurred,  for  example,  in  the  case  of  several  Massachusetts  acts 
for  erecting  townships.  A.  P.  C,  vol.  v,  p.  33.  And  (2)  the  com- 
mittee sometimes  summoned  the  Board  to  its  own  office  for  a  joint 
meeting.    Cf.  infra,  p.  84,  note  2. 

"^  Soon  after  the  formation  of  the  Board  one  of  the  clerks  was  in- 
structed to  call  at  the  Council  from  time  to  time  for  their  determination 
upon  colonial  laws.  C.  S.  P.,  i6g6-7,  p.  215.  But  this  plan  seems  to 
have  proved  unsatisfactory,  for  in  1697  the  secretary  of  the  Board  made 
arrangements  with  the  clerks  of  the  Council  for  the  transmission  to 
the  Board  of  such  orders  as  concerned  trade  and  plantations.  B.  T.  J., 
vol.  X,  p.  125.  In  1724  the  Board  requested  the  president  of  the  Council 
to  give  directions  that  orders  for  the  confirmation  or  repeal  of  acts  be 
sent  to  their  office.    B.  T.  I.,  vol.  xxxiii,  p.  135. 


473]  PROCEDURE  IN  REVIEW  55 

bationary."     The  latter  course  was  sometimes  taken  as  a 
means  of  eliminating  certain  objectionable  features  from 
an  otherwise  beneficial  law,  the  act  being  allowed  to  stand 
provisionally  while  the  governor  either  was  instructed  to 
procure  an  amendment  remedying  its  defects,  or  to  obtain 
the  repeal  of  the  old  law  and  the  enactment  of  a  new.jOrHis\ 
was  especially  true  of  acts  involving  the  collection  or  pay-  \ 
ment  of  money,  the  provisions  of  which  had  been  at  least   I 
partially  fulfilled  before  action  upon  them  could  be  taken  / 
by  the  Board  of  Trade.    A  Massachusetts  act  of  1764,  for 
example,  the  Board  found  objectionable  "  in  no  other  re- 
spect .  .  .  than  as  it  directs  a  double  Impost  .  .  .  for  all 
goods    .    .    .    imported  by  inhabitants  of  other  Colonies." 
They  accordingly  proposed  "an  instruction  to  the  Governor 
for  procuring  the  amendment  of  this  particular  clause."  ^ 
In  some  cases  it  was  stated  that,  if  the  request  for  an  amend- 
ment were  not  complied  with,  the  act  would  be  immediately 
disallowed ;  ^  and  that  a  Pennsylvania  law  might  remain 
unrepealed,  the  agents  signed  a  written  agreement  that  a 
desired  alteration  would  be  made.^ 

In  other  cases  the  period  of  probation  was  temporary 
pending  the  receipt  of  further  information  from  the  colony. 
After  considering  a  petition  of  the  merchants  against  an 
Indian  trade  act  of  New  York,  for  example,  the  Board 
^'  being  doubtful  of  the  facts  alleged  and  considering  how 
far  the  British  trade  may  be  affected,  .  .  .  and  how  much 
the  security  and  interest  of  Your  Majesty's  Colonies  .  .  . 
May  be  concerned,"  advised  that  no  direction  be  given  on 
the  subject  until  the  governor  had  been  acquainted  with 

*  Goodell,  Acts  and  Resolves,  vol.  iv,  p.  698.  A.  P.  C,  vol.  iii,  p.  553; 
South  Carolina,  1737.    A.  P.  C,  vol.  iv,  p.  416;  North  Carolina,  1759. 

^  CO/5-401,  p.  146.  N.  y.  Col.  Docs.,  vol.  vi,  p.  33.  Board  Represen- 
tation to  the  House  of  Lords,  1734,  in  the  British  Museum.    8223.  i.  5. 

^  A.  P.  C,  vol.  iv,  p.  442;  2  September  1759. 


56  REVIEW  OF  COLONIAL  LEGISLATION  [4-^4 

the  objections  of  the  merchants,  and  had  made  answer.^ 
Again,  probation  amounted  merely  to  a  brief  delay  in  con- 
firmation to  insure  ample  time  for  the  presentation  of  peti- 
tions against  legislation.  For  this  purpose  it  became  the 
settled  policy  of  the  Board  to  hold  probationary  for  several 
months  all  "  private  acts  "  or  laws  conferring  special  rights 
or  privileges  upon  individuals  or  small  groups  of  persons. 
Public  acts  affecting  in  an  unusual  manner  or  special  fashion 
the  rights  or  property  of  private  individuals  might  also  be 
laid  by.  Thus,  in  reporting  upon  a  New  Jersey  law  for 
running  a  boundary  between  East  and  West  Jersey,  the 
committee  said:  "This  is  an  act  wherein  private  Property 
is  concerned.  The  Lords  Commissioners  have  lett  the  same 
lye  by  for  some  time,  that  in  case  any  Person  should  have 
been  aggrieved  thereby,  they  might  have  Sufficient  opper- 
tunity  to  lay  their  objections  before  them.  .  .  .  As  it  is 
now  about  ten  years  since  the  act  was  passed,  and  it  will 
be  of  advantage  to  the  inhabitants,"  it  may  be  confirmed.^ 
In  the  great  majority  of  cases,  however,  acts  were  laid 
by  indefinitely  as  a  precaution  to  safeguard  the  rights  of 
private  individuals  or  the  interests  of  the  crown.  Inasmuch 
as  the  government  conceded  that  laws  once  confirmed  could 
never  thereafter  be  disallowed,^  the  advantage  of  the  prac- 
tice is  obvious.  Acts  which  presumably  embodied  local 
sentiment  could  remain  in  force,  while  the  crown,  never- 

^N.  Y.  Col.  Docs.,  vol.  V,  p.  709;  14  July  1724. 

^A.  P.  C,  vol.  iii,  p.  222. 

*  In  1703  Attorney  General  Northey  delivered  an  opinion  to  the  effect 
that  a  law  "  having  been  approved  absolutely  and  not  for  any  time  or 
with  any  reservation  to  the  Crown  to  repeal  it,  will  be  in  force  till  the 
same  be  repealed  by  another  act  of  the  General  Assembly  of  the  Colony. 
*  the  passing  of  an  act  there  with  the  absolute  confirmation  of  Her 
Majesty  having  the  force  of  an  act  of  Parliament  made  in  England." 
CO/ 5-323,  F,  14.  Board  of  Trade  to  Hunter,  CO/ 5-995,  p.  327;  22 
March  1716.    A.  P.  C,  vol.  iv,  p.  144. 


475]  PROCEDURE  IN  REVIEW  57 

theless,  remained  uncommitted  and  free  to  repeal  them  at 
any  time  if  unexpected  objections  arose.     As  to  such  laws 
as  are  not  directly  repugnant  to  the  laws  or  interests  of 
Great  Britain,  against  which  no  complaint  is  made,   and 
where  the  Board  are  doubtful  of  the  effect  they  may  have, 
says  a  report  of  that  body,  ''  it  has  always  been  usual  to 
let  them  lye  by  probationary,  being  still  under  the  power 
of  the  Crown  to  be  repealed,  in  case  any  inconvenience  \ 
may  arise  from  them."  ^     Either  from  neglect  or  design,  / 
fully  one-half  of  the  laws  passed  between  1690  and  1699 
were  allowed  to  remain  in  force  without  formal  confirma- 
tion or  disallowance.     Of  those  enacted  between  1700  and 
1 710,  about  three-fourths,  and  of  those  passed  during  the 
decade  following,  about  ninety  per  cent  were  unaffected  by  \ 
orders  in  council.^     Despite  the  growing  tendency  to  dis-  ! 
pense  with  a  definite  decision,  however,  the  phrase  ' 
by  probationary"  did  not  come  into  use  until  about 


'  to  lye  i 
I7i8.y 


*  Representation  to  the  House  of  Lords,  in  the  British  Museum,  2Z 
January  1734. 

''The  approximate  percentages  of  acts  submitted  which  were  confirmed 
or  disallowed  by  orders  in  council  are  as  follows:  of  laws  enacted  be- 
tween 1690  and  1699,  48%,  thereafter  by  decades,  26%,  10%,  5J^%,  18%, 
20%,  19%,  9%,  Between  1770  and  1775,  6%.  The  increased  percent- 
ages between  1730  and  1760  are  due  to  the  confirmation  of  a  large 
number  of  Massachusetts  laws,  and  have,  therefore,  no  great  signi- 
ficance. By  colonies  the  percentages  of  acts  confirmed  or  disallowed 
are:  South  Carolina  6%,  New  Jersey  7%,  New  York  8^%,  North 
Carolina  9^%,  Georgia  11%,  New  Hampshire  11%,  Virginia  18%, 
Massachusetts  25%,,  and  Pennsylvania  29%.  The  laws  of  Massachu- 
setts and  Pennsylvania  were  subject  to  rather  closer  scrutiny  than  those 
of  other  colonies  because  of  the  charter  provisions  by  virtue  of  which 
they  were  confirmed  by  lapse  of  time  unless  disallowed  within  a  stated 
period.  Moreover  their  early  attempts  to  base  legislation  upon  the 
word  of  God  resulted  in  the  annulment  of  many  laws  during  the  first 
two  decades  of  review.  Thereafter  the  proportion  of  their  acts  dis- 
allowed was  not  appreciably  larger  than  that  of  other  colonies. 

*  In  1708  the  Board  made  inquiries  of  Lovelace  regarding  a  New 
Jersey  act  of  1704  for  "iRegulating  Elections,"  ordering  that  "in  the 


58  REVIEW' OF  COLONIAL  LEGISLATION  [476 

It  first  appeared,  and  continued  to  be  most  often  employed, 
in  connection  with  the  laws  of  Massachusetts,  probably  be- 
cause their  probation  meant  no  more  than  the  postponing 
of  confirmation  until  three  years  after  presentation,  when 
acts  not  disallowed  were  placed  beyond  the  reach  of  the 
crown  by  the  terms  of  the  provincial  charter.  The  practice 
continued  in  frequent  use  at  the  Board  of  Trade,  and  be- 
came very  ccmmon  after  1760,  when  many  laws  which  ap- 
peared unob  iectionable  were  ordered  collectively  "  to  lye 
by  till  their  i  urther  effect  may  be  known." 

As  an  advisory  council  upon  colonial  affairs,  the  Board  gf 
Trade  served  not  only  the  Privy  Council  and  the  secretary 
of  state,  but  also  Parliament.  Upon  receiving  an  order 
from  either  house  for  laws  or  documents  relating  to  the 
colonies,  the  Board,  by  one  of  its  members,  would  dispatch 
copies.^  For  several  years  it  rendered  annual  reports  to 
the  house  of  Commons  regarding  "  the  Laws,  Manufac- 
tures, and  Trade  of  the  Plantations."  These  made  brief 
mention  of  such  laws  only  as  concerned  trade,  shipping  or 
manufactures.  Apparently  they  were  put  to  no  very  im- 
portant use,  and  after  a  time  the  custom  was  allowed  to 
lapse.^  In  1740  the  Board  reported  to  both  houses  regard- 
meantime  the  act  remain  in  force,  without  being  confirmed."  A^.  Y. 
Col.  Docs.,  vol.  V,  p.  46.  In  May  1710  it  agreed  to  let  a  Massachusetts 
act  of  1705  "  remain  as  Probationary  for  some  time  longer."  B.  T.  I., 
vol.  xxi,  p.  454.  With  a  few  exceptions  all  the  Massachusetts  laws 
passed  between  1706  and  1714  were  confirmed  by  lapse  of  time.  Acts 
and  Resolves,  vol.  i,  p.  616,  note.  In  1716  a  New  York  law  was  "  left 
probationary"  until  the  governor  should  be  heard  from;  while  in  1718 
two  acts  of  Barbadoes,  two  of  New  Hampshire,  and  nine  of  Massa- 
chusetts were  ordered  to  "lye  by."  CO/5-1123,  p.  431.  Acts  and  Re- 
solves, vol.  ii,  p.  31.  B.  T.  J.,  vol.  xxvii,  pp.  166,  310.  The  phrase  ap- 
pears commonly  thereafter. 

*  B.  T.  J.,  vol.  xl,  pp.  84,  91.    B.  T.  J.,  vol.  xli,  pp.  54,  56,  92.    B.  T.  /., 
vol.  Ixxxi,  p.  44. 

^  B.  T.  /.,  vol.  xli,  pp.  36,  37,  38,  40. 


477]  PROCEDURE  IN  REVIEW  59 

ing  the  state  of  the  paper  money  in  the  various  plantations, 
and  upon  request  it  drafted  an  act  of  Parliament  for  "Rais- 
ing a  Revenue"  in  New  York/  Official  communications 
from  the  Board  to  Parliament,  however,  had  as  their  object 
either  the  transmission  of  desired  documents,  or  the  com- 
munication of  information  regarding  the  colonies  in  general. 
Unlike  representations  to  the  committee  or  the  Council,  they 
did  not  contain  definite  recommendations  that  any  partic- 
ular course  of  action  be  pursued. 

Turning  from  the  Board  of  Trade  itself,  we  shall  con- 
sider briefly  the  various  sources  of  counsel  and  information 
available  to  it  in  forming  opinions  and  recommendations 
upon  colonial  laws.  Legislation  upon  matters  under  the 
jurisdiction  of  the  treasury  or  the  admiralty  was  referred 
to  one  or  the  other  of  these  departments;  while  laws  affect- 
ing the  interests  of  the  Anglican  Church  were  sent  to  the 
Bishop  of  London.  And  careful  attention  was  accorded 
alike  to  the  complaints  and  representations  of  the  merchants, 
to  the  arguments  of  colonial  agents,  and  to  the  recommen- 
dations of  the  governors.  But  none  of  these  exercised  upon 
the  deliberations  and  policy  of  the  Board  so  constant  and 
persuasive  an  influence  as  did  the  opinions  delivered  by  th^ 
legal  advisers  for  the  crown,  the  attorney  and  solicitor  gen- 
erals, and  later  by  the  king's  counsel.  -  </ 

The  commission  of  the  Board  of  Trade  empowered  it  to 
"desire  the  advice  of  the  Attorney  and  Solicitor  General 
or  other  Counsel  at  Law,"  ^  and  of  the  privilege  the  Board, 
like  its  predecessor  the  committee,  continually  availed  itself. 
References  were  commonly  made  for  one  of  two  purposes : 
either  to  obtain  an  expert  opinion  as  to  the  general  fitness 
of  legislation  "  Iq  point  of  law,"  or  to  secure  advice  upon 

^  B.  T.  /.,  vol.  xlviii,  pp.  3,  23.    B.  T.  /.,  vol.  xxii,  pp.  255,  257,  264. 
•  ^  B.  T,  I.,  vol.  xii,  p.  74;  19  June  1699. 


6o  REVIEW  OF  COLONIAL  LEGISLATION  [478 

definite  legal  problems  arising  out  of  the  consideration  of 

I ,  J   .1  III  HI  .  j[  jLu yiiiiT-~''~~iniiiu._.ajnin.ii.]n-j<  iiiiwiii«iiin»ji ■  n  riiiiii^ifTiwi|i]ii   in    hit ^ t-i  n iiT 

acts. 

For  the  foniier  purpose  the  services  of  the  attorney  and 
solicitor  proved,  upon  the  whole,  unsatisfactory.  From  the 
first  the  procrastination  and  delay  with  which  they  rendered 
their  reports  were  a  cause  of  annoyance  and  of  serious  in- 
convenience to  the  Board  of  Trade.  In  spite  of  repeated 
solicitations,  several  acts  of  Massachusetts,  referred  in  Sep- 
tember, 1696,  were  not  returned  until  June,  1698.^  In 
June,  1699,  the  Board  was  still  without  a  desired  opinion 
upon  Pennsylvania  laws  which  had  been  with  the  attorney 
and  solicitor  general  eighteen  months;  and  notwithstand- 
ing a  request  for  a  "  speedy  report,"  acts  of  Virginia  re- 
ferred in  May,  1703,  remained  in  the  law  office  four  years.^ 
Occasionally  the  attorney  and  solicitor  acted  with  com- 
mendable promptness.^  But  in  the  majority  of  cases  they 
did  not  do  so,  and  much  needless  uncertainty  and  delay  re- 

*  These  acts  were  among  "  all  laws  of  the  Plantations  now  before 
this  Board"  which  were  ordered  to  the  attorney  and  solicitor  on  Sep- 
tember 5,  1696.  B.  T.  /.,  vol.  ix,  p.  92.  On  December  nth  the  Board 
ordered  its  secretary  to  desire  of  the  attorney  his  report  upon  "  Laws 
already  in  his  hands,  as  soon  as  he  can."  B.  T.  J.,  vol.  ix,  p.  277. 
And  again  on  April  8,  1697  the  Board  requested  a  "  dispatch  of  the 
acts  of  the  Assemblies  (but  most  especially  those  of  Massachusetts 
Bay)  which  lye  in  your  hands.  It  being  for  His  Majesty's  service 
that  they  be  dispatched."  CO/5-1287,  p.  64.  Later  they  asked  the 
agent  of  Massachusetts  to  look  into  the  matter,  "  as  it  is  not  right  these 
acts  should  be  kept  so  long  in  suspense."  CO/5-907,  p.  372;  3  May 
1698.  He  did  so,  and  reported  that  they  had  been  mislaid,  but  were 
now  "  found  by  Mr.  Attorney."  B.  T.  /.,  vol.  xi,  pp.  43,  54,  68. 
CO/5-908,  p.  4.  Other  acts  referred  at  the  same  time  were  reported  on 
in  January  1698,  after  having  been  with  the  law  officers  a  year  and 
a  half. 

2  C.  S.  P.,  1699,  p.  140.  B,  T.  /.,  vol.  xi,  p.  438.  B.  T.  /.,  vol.  xvii, 
pp.  36,  37. 

'  Some  forty  acts  of  New  Hampshire,  for  example,  sent  to  the 
attorney  general  on  July  22,  1703  were  considered  together  with  his 
report  on  August  13. 


479]  PROCEDURE  IN  REVIEW  6l 

suited.  Judging-  from  their  spasmodic  manner  of  examin- 
ing the  colonial  laws,  they  regarded  the  task  as  an  unlucra- 
tive  addition  to  more  important  duties.  In  excusing  the 
failure  of  the  attorney  to  dispatch  plantation  laws,  the  agent 
for  Virginia  mentions  "  some  difficulties  in  relation  to  his 
fees,"  while  the  attorney  himself  urges  the  fact  that  not 
one  of  the  agents  have  attended  him.^  While  the  agents,  no 
doubt,  gave  necessary  information  regarding  the  purpose  of 
legislation,  their  influence  in  securing  law  reports  was  due 
in  part  to  a  judicious  distribution  of  fees  —  the  lack  of 
which  caused  much  of  the  delay  at  the  law  offices. 
f  Moreover,  the  fact  that  the  examination  of  laws  was"'eTi^ 
\  trusted  to  two  officials  of  equal  authority  resulted  in  divided 
|responsibility  and  consequent  confusion.  The  first  acts  re- 
lerred  by^he  Board  of  Trade  were  sent  "  to  the  Attorney 
and  Solicitor  General  for  their  advice  thereon."  ^  Several 
months  having  passed  without  a  report,  the  Board,  in  order 
to  expedite  matters,  requested  the  attorney  to  give  his 
opinion  upon  the  acts  already  in  his  hands,  at  the  same 
time  directing  that  such  laws  as  had  been  lately  received  be 
sent  to  the  solicitor.^  In  July,  1697,  the  Board  ordered  its 
secretary  to  urge  the  dispatch  of  laws  already  referred,  as 
4  matter  of  great  importance  to  his  majesty's  service. 
"And  that  hereafter  in  sending  any  such  acts  to  them,  he 
direct  them  to  the  said  Attorney  and  Solicitor  General,  or 
either  of  them ;  And  send  the  Packets,  as  they  shall  happen 
to  consist  of  many  or  few,  with  that  Direction,  alternately 
first  to  the  one  and  then  to  the  other."  *  This  arrangement 
failing  to  secure  the  desired  promptness  and  regularity,  the 

1  B.  T.  J.,  vol.  xvii,  p.  37'    CO/5-1360,  p.  470;  il  May  1704.    CO/5-323, 
F,  18;  19  October  1703. 

2  B.  T.  L,  vol.  ix,  p.  92 ;  5  September  1696. 

'  B.  T.  /.,  vol.  ix,  pp.  277,  278;  II  December  1696. 
*B.  T.  /.,  vol.  X,  p.  156;  8  July  1697. 


62  REVIEW  OF  COLONIAL  LEGISLATION  [480 

Board  suggested  that  the  secretary  propose  to  them,  "  if 
they  saw  fit,  to  agree  between  themselves  about  the  acts  of 
what  particular  Plantation  they  will  each  of  them  hence- 
forwards  take  care."  ^  But  this  plan,  if  adopted  at  all,  did 
not  remain  long  in  operation,  for  acts  of  each  colony  were 
sent  now  to  the  solicitor  and  now  to  the  attorney.  No  gen- 
eral rule  was  followed,  apparently,  although  in  the  long  run 
the  number  of  references  to  each  was  about  equal. 

For  a  time  the  Board  sent  practically  all  the  acts  received 
to  the  attorney  or  the  solicitor;  but  after  1700  the  propor- 
tion referred  begins  to  show  a  marked  decline,  the  tendency 
being  to  dispatch  only  those  of  more  questionable  expedi- 
ency or  of  unusual  importance,  until  gradually  the  Board 
gave  up  attempting  to  exact  from  the  attorney  and  solicitor 
a  general  examination  of  colonial  legislation,  contenting 
itself  with  an  occasional  reference  of  isolated  acts.  Such 
a  course  was  in  harmony  with  the  growing  practice  of 
allowing  unobjectionable  acts  "  to  lye  by,"  and  was,  no 
doubt,  partly  the  result  of  the  general  laxity  of  adminis- 
tration then  setting  in.  On  the  other  hand,  the  regularity 
of  the  references  made  to  the  king's  counsel  a  few  years 
later,  and  the  importance  attached  to  his  reports,  would  in- 
dicate that  the  fault  at  this  time  lay  not  so  much  in  the 
failure  of  the  Board  to  refer,  as  in  that  of  the  attorney  and 
solicitor  to  report.^    Despite  the  increasing  volume  of  legis- 

*  B.  T.  J.,  vol.  xi,  p.  278;  8  November  1698. 

'All  Massachusetts  laws  enacted  between  1696  and  1706  were  re- 
ferred; while  those  passed  between  1706  and  1716  were  allowed  to  lye 
by.  Only  about  one-half  of  the  New  York  laws  passed  between  1696 
and  1 714  went  to  the  attorney  and  solicitor,  though  all  enacted  pre- 
vious to  1700  were  referred.  The  laws  of  New  Hampshire  enacted 
prior  to  1704  were  sent  to  the  attorney  or  solicitor,  but  none  thereafter. 
The  last  acts  of  each  colony  to  be  referred  collectively  were  passed 
by  New  York  in  1701,  New  Hampshire  in  1703,  Massachusetts  in  1706, 
Virginia  in  1710,  and  Pennsylvania  in  1712.  No  laws  of  New  Jersey- 
were  so  referred.  After  1718  acts  were  allowed  to  lye  by,  as  a  rule, 
only  after  having  been  approved  by  the  king's  counsel. 


48l]  PROCEDURE  IN  REVIEW  63 

lation,  the  process  of  review  was  almost  at  a  halt,  when  in 
April,  1 71 8,  a  special  attorney  known  as  the  "  King's  Coun- 
sel "  was  designated  to  act  as  legal  adviser  to  the  Board ; 
and  upon  him  were  conferred  the  burden  and  routine  of 
reporting  as  to  the  fitness  of  colonial  acts  "  in  point  of  law." 
The  attorney  and  solicitor,  however,  continued  to  advise 
the  Board,  upon  request,  regarding  acts  of  unusual  impor- 
tance and  legal  questions  of  unusual  difficulty.^ 

In  many  instances  prior  to  the  appointment  of  a  king's\ 
counsel,  and  in  a  great  majority  of  instances  thereafter,  the 
Board,  in  referring  acts  to  the  attorney  and  solicitor,  re- 
quested not  merely  an  opinion  "  in  point  of  law,"  but  a 
reply  to  one  or  more  definite  questions.  The  point  most 
frequently  raised  in  this  manner  was  the  legality,  or  what 
might  now  be  termed  the  constitutionality  of  legislation. 
Had  the  colonial  legislature  exceeded  its  power  and  author- 
ity in  passing  the  law?  Were  its  provisions  unwarranted 
under  the  terms  of  the  provincial  charter,  or  in  conflict] 
with  an  act  of  Parliament?  The  Board  inquired,  for  ex- 
ample, whether  two  acts  of  North  Carolina  were  "  proper 
consistently  with  the  just  rights  of  the  inhabitants  and  the 
Constitution  of  said  Province."  ^  And  three  private  acts 
granting  decrees  of  divorce,  they  referred  to  the  attorney 
and  solicitor  upon  "  a  matter  of  doubt  whether  the  legis- 

*  In  1770  Jackson,  the  King's  Counsel,  recommended  that  a  Pennsyl- 
vania act  be  sent  to  the  attorney  and  solicitor  "  inasmuch  as  the  exer- 
cise of  this  power  [the  granting  of  divorce]  may  frequently  effect 
other  parts  of  His  Majesty's  Dominions  out  of  the  limits  of  the  Pro- 
vince, and  very  important  consequences  may  therefore  be  drawn  from 
the  allowance  of  such  an  act."    CO/5-1278,  Z,  i. 

It  is  perhaps  worthy  of  note  that  whereas,  prior  to  1718,  references 
had  been  made,  as  a  rule,  either  to  the  attorney  or  the  solicitor  a  great 
majority  of  those  thereafter  were  made  neither  to  the  one  nor  the 
other,  but  to  both;  while  the  majority  of  their  reports  which  formerly 
had  been  signed  separately  were  after  this  time  rendered  jointly. 

'  CO/5-323,  p.  353;  30  April  1750. 


64  REVIEW  OF  COLONIAL  LEGISLATION  [482 

lature  of  the  Province  of  Massachusetts  Bay  or  any  other 
Colony  has  a  power  of  passing  Laws  of  this  nature,  and 
consequently  whether  these  acts  are  not  of  themselves  null 
and  void."  ^  And,  to  give  one  example  among  many,  a 
naturalization  law  of  New  Jersey  was  sent  to  the  solicitor 
with  an  inquiry  as  to  how  far  it  was  "consistent  with  the 
act  of  Parliament  of  12  Charles  II,  .  .  .  or  other  acts  of 
Parliament"^  Many  queries  had  to  do  with  the  interpre- 
tion  of  some  puzzling  or  obscure  provision  of  a  colonial 
law/  The  Board  also  passed  on  to  them  several  questions 
propounded  by  the  governor  of  Rhode  Island  regarding  his 
powers  under  the  provincial  charter;  and  they  inquired 
whether  certain  acts  of  Parliament  extended  to  the  planta- 
tions, and  whether  the  charter  of  Pennsylvania  entitled 
both  Penn  and  his  lieutenant  governor  to  exercise  a  veto 
^/^€^n  laws  passed  there.*KOther  questions  were  of  a  more 
general  nature.  The  attorney  and  solicitor  were  requested, 
for  example,  to  report  upon  the  granting  of  letters  of  deni- 
zenship  by  the  governors,  and  by  what  authority  it  w^as 
done.^  Also,  whether  the  crown  might  not  settle  rates  of 
coin  in  the  plantations  by  proclamation ;  whether  foreigners 
naturalized  by  the  assemblies  gained  thereby  all  the  privi- 

*  CO/5-918,  p.  490;  6  June  1758.  CO/5-920,  p.  209;  13  March  1767. 
B.  T.  /.,  vol.  xix,  pp.  84,  85;  27  February  1701. 

^  CO/5-995,  P-  450;  10  December  1718. 

'  Question  as  to  the  eflfect  of  an  act  suspending  the  operation  of  a 
former  law.  CO/5-726,  pp.  345,  348;  Maryland,  5  December  1705.  In- 
quiry regarding  a  Massachusetts  tax  act :  "  Whether  the  Commissioners 
and  other  Officers  of  the  Customs  are  liable  to  be  taxed  *  for  their 
salaries  paid  out  of  money  not  granted  to  the  Crown  by  the  General 
Court."    CO/5-920,  p.  276;  9  February  1770. 

*  CO/5-1294,  p.  57;  5  September  1732.    B.  T.  /.,  vol.  Ixxix,  p.  176; 
5  June  1767.    B.  T.  /.,  vol.  xviii,  p.  52;  9  October  1705. 
I^CO/5-714,  p.  348;  3  November  1698.    This  request  came  from  the 
Privy  Council. 


483]  PROCEDURE  IN  REVIEW  65 

leges  of  j>ersons  naturalized  by  the  act  of  Parliament  in 
Great  Britain;  and  by  what  authority  the  colonies  claimed 
the  power  to  make  temporary  laws.*^ 

In  addition  to  their  examination  of  laws,  the  attorney 
and  solicitor  considered  the  tentative  drafts  of  acts,  or 
*'  bills,"  which  governors  sometimes  presented  to  the  Board 
with  a  request  for  j>ermission  to  give  their  assent.  When 
requested  to  do  so  by  the  Board  they  drafted  amendments 
to  such  bills ;  and  in  a  few  cases  they  "  prepared  the  heads  " 
of  a  law  which  the  Board  wished  to  have  passed  by  an 
assembly.^  After  17 18  they  rarely  attended  at  the  Board, 
and  when  they  did  so  it  was  usually  to  act  as  counsel  for 
one  of  the  parties  to  a  hearing.  In  March,  1738,  the  Board 
"  had  discourse  "  with  both  regarding  quit-rents  in  North 
Carolina.^  The  solicitor  attended  and  spoke  at  length  as 
counsel  for  the  petitioner  against  a  New  York  act  "  Mak- 
ing void  a  fraudulent  Conveyance  to  William  Davenport  " ; 
and  in  1760  both  acted  for  the  proprietors  of  Pennsylvania 
at  a  hearing  upon  several  laws.* 

ix^  April,  1 7 18,  Richard  West  was  designated  as  "  King's 
Counsel  "  with  a  yearly  salary  of  three  hundred  pounds. 
He  was  commissioned  to  attend  to  such  "  Law  Business 
regarding  Trade  and  Plantations  as  the  Board  should  not 
conceive  of  that  importance  to  require  the  opinion  of  the 

v^B.  T.  J.,  vol.  xvi,  p.  142;  I  June  1703.  B.  T.  /.,  vol.  xlv,  p.  29; 
2  March  1736.    ^^Xmtrs^^iiqny^,,^,  22i^,  :^2>9X22  July  1714. 

2C.  S,  P.,  1693-6,  p.  647.  CO/5-1360,  p.  469.  B.  T.  J.,  vol.  xxvii, 
p.  118.  B.  T.  /.,  vol.  xli,  p.  191.  B.  T.  /.,  vol.  Ixv,  (unpaged)  ;  Jamaica, 
5  July  1758. 

»  B.  T.  /.,  vol.  xlvii,  p.  29. 

*5.  T.  /.,  vol.  xlvii,  p.  52;  3  April  1734.  B.  T.  J.,  vol.  xlvii,  p.  148. 
CO/5-1295,  p.  297;  24  June  1760.  One  of  the  two  appeared  for  Carolina 
against  an  act  of  Georgia  for  regulating  the  Indian  trade.  CO/5-366, 
F,  59. 


66  REVIEW  OF  COLONIAL  LEGISLATION  [484 

Attorney  and  Solicitor  General."^  West  held  the  office 
until  he  was  appointed  chancellor  for  Ireland  in  June,  1725. 
His  successor  was  Francis  Fane,  who  retired  in  1746  and 
subsequently  became  a  member  of  the  Board  of  Trade. 
He  was  succeeded  by  Sir  Matthew  Lamb,  an  exceedingly 
able  man,  who  held  the  position  for  over  twenty  years. 
After  a  short  intermission,  during  which  the  post  was 
vacant,  Richard  Jackson  was  appointed.  He  served  until 
after  1776. 

In  obedience  to  a  summons  from  the  Board,  West  at- 
tended for  the  first  time  on  May  7,  1718.  After  consider- 
ing several  acts  of  Antigua,  they  desired  him  to  put  his 
observations  upon  them,  or  any  other  acts  of  the  planta- 
tions, in  writing,  and  he  agreed  to  do  so  from  time  to  time 
accordingly.^  For  a  time  West  attended  all  meetings  of  the 
Board  at  which  acts  were  considered.  He  appears  to  have 
rendered  oral  advice  while  they  were  under  consideration 
and  to  have  submitted  a  written  report  at  a  subsequent  meet- 
ing upon  those  which  involved  questions  of  special  difficulty 
or  importance.^  Gradually,  however,  West's  attendance  be- 
came less  frequent,  and  in  the  course  of  a  year  or  two  the 
Board  had  returned  to  the  procedure  formerly  observed  in 
referring  laws  to  the  attorney  and  solicitor  general.  In 
other  words,  they  sent  all  acts  to  the  counsel  and  deferred 
the  consideration  of  them  until  returned  with  a  written  re- 

^  Chalmers,  Opinions,  pp.  9,  10.    B.  T,  /.,  vol.  xxvii,  pp.  206,  213. 

2  B.  T.  /.,  vol.  xxvii,  p.  231 ;  7  May  1718.  He  was  given  "  Liberty  at 
any  time  to  peruse  such  papers  in  this  Office  as  relate  to  any  of  these 
acts  of  Plantations,  *  *  or  which  concern  the  Trade  of  this  Kingdom." 
B.  T.  /.,  vol.  xxvii,  p.  222;  2  May  1718. 

'A  New  York  act,  after  being  considered  with  the  king's  counsel 
attending  was  "referred  to  Mr.  West  for  his  opinion  in  writing 
thereon."  B.  T.  J.,  vol.  xxviii,  p.  129,  140;  February  1719.  Others 
were  sent  to  him,  "  for  his  particular  consideration  and  report." 
B.  T.  /.,  vol.  xxviii,  p.  218. 


485]  PROCEDURE  IN  REVIEW  67 

port.  The  king's  counsel  continued,  nevertheless,  to  attend 
meetings  of  the  Board  whenever  he  was  requested  to  do  so.^ 

Law  reports,  whether  submitted  by  the  attorney  and  solic- 
itor general  or  by  the  king's  counsel,  often  consisted  of  the 
simple  statement  that  certain  acts,  having  been  examined, 
appeared  unobjectionable  "  in  point  of  law."  Or  the  law 
officer  began  by  stating  that  certain  acts  were  temporary 
and  had  expired,  and  that  others  were  liable  to  no  objec- 
tion. The  remainder  he  listed  separately,  with  comments 
following  the  title  of  each.  After  a  short  discussion  of  an 
act  there  followed,  as  a  rule,  a  definite  recommendation 
that  it  be  confirmed,  or,  in  spite  of  objectionable  features, 
allowed  to  lie  by,  or  that  it  be  disallowed.  Criticisms  were 
based  primarily  upon  grounds  of  legality,  although  general 
considerations  of  policy  and  expediency  were  discussed  as 
well.  In  the  latter  case,  however,  the  law  officer  was  more 
restrained  in  making  definite  recommendations  as  to  the 
course  which,  in  his  judgment,  should  be  pursued. 

From  the  first,  it  was  usual  for  the  agents  or  for  repre- 
sentatives of  persons  interested  in  particular  laws  to  solicit 
from  the  law  officers  the  consideration  of  and  report  upon 
legislation.  They  appear  to  have  explained  the  purpose  of 
laws  by  stating  the  special  circumstances  which  led  to  their 
enactment,  to  have  advanced  arguments  for  or  against  their 
confirmation,  and  to  have  expedited  matters  by  the  payment 

^  The  Board  sometimes  propounded  queries  to  the  counsel  as  well  as 
to  the  attorney  and  solicitor.  They  were,  however,  comparatively  few 
in  number,  and  generally  had  to  do  with  matters  of  lesser  scope  and 
significance.  The  Board  asked,  for  example,  whether  the  Pennsylvania 
charter  permitted  the  re-enactment  of  laws  disallowed  in  England; 
whether  a  clause  of  a  law  repealed  by  a  temporary  law  revived  upon  the 
expiration  of  the  repealing  act ;  and  whether  under  an  act  of  Parliament 
colonial  privateers  were  entitled  to  bounties.  B.  T.  /.,  vol.  xxviii, 
p.  167.     CO/5-873,  p.  507.    B.  T.  /.,  vol.  li,  p.  129. 


68  REVIEW  OF  COLONIAL  LEGISLATION  [486 

of  fees/  In  rare  instances  they  employed  counsel  and  a 
preliminary  hearing  was  held.  There  is  no'  record  of  the 
proceedings.  But  apparently  the  arguments  were  concerned 
both  with  matters  of  law  and  of  policy,  and  were,  there- 
fore, scarcely  more  technical  or  less  broad  in  scope  than 
those  advanced  at  hearings  before  the  Board  of  Trade. ^ 

The  content  of  the  law  report  usually  determined  the 
trend  of  discussion  upon  an  act  at  the  Board  of  Trade,  and 
not  uncommonly,  apart  from  any  other  consideration,  de- 
termined its  fate.  In  no  instance  was  a  recommendation 
of  the  attorney  or  solicitor  general  as  to  the  confirmation 
or  disallowance  of  an  act  rejected;  although  laws  were 
sometimes  re-referred  for  additional  information  or  fur- 
ther elaboration  of  points  previously  made.^  Advice  given 
by  the  king's  counsel  was  sometimes,  though  not  often,  dis- 
regarded.*   Even  after  the  appointment  of  a  king's  counsel, 

^  A  representative  of  the  commissioners  of  the  customs  appeared  be- 
fore the  solicitor  against  a  Massachusetts  act  "  Prohibiting  the  Exporta- 
tion of  Money."  C.  5".  P.,  1700,  p.  475;  9  August  1700.  The  report 
of  the  solicitor  upon  a  New  York  law  "Vacating  Several  extravagant 
Grants  of  Lands"  contains  a  statement  of  the  arguments  advanced  to 
him  both  for  and  against  the  law  by  parties  interested.  CO/5-1044, 
p.  132;  27  June  1700.  Also  regarding  an  act  of  Jamaica  see  B.  T.  J., 
vol.  xvi,  p.  205;  9  September  1703. 

2  The  report  upon  two  laws  of  North  Carolina  stated  that  the  officer 
had  "taken  the  same  into  consideration  and  heard  Counsel  for  and 
against  the  said  acts."  CO/5-296,  C,  i ;  i  December  1750.  In  1737  the 
Georgia  trustees  entered  a  caveat  with  the  attorney  general  that  no 
report  be  made  upon  some  queries  of  the  Board  regarding  an  Indian 
trade  act  until  they  had  been  given  an  opportunity  to  be  heard  by  their 
counsel  before  him.  CO/5-366,  F,  59;  29  June  1737-  Fane  was  attended 
by  a  solicitor  for  the  merchants,  who  argued  against  the  confirmation  of 
a  New  Jersey  impost  act  that  great  detriment  would  arise  to  the  trade 
of  the  kingdom  from  a  clause  laying  a  duty  on  copper  ore  exported. 
CO/5-973,  F,  9. 

"00/5-1361,  p.  i;  15  August  1740. 

*  CO/5-1296,  p.  z6z',  Pennsylvania,  20  July  1770.  A.  P.  C,  vol.  v, 
p.  282;  New  Hampshire,  9  December  1770. 


487]  PROCEDURE  IN  REVIEW  69 

the  Board  did  not  invariably  secure  a  law  report  upon  acts 
which  it  considered.  An  important  bankruptcy  law  of 
Massachusetts  was  disallowed  without  a  reference  to  Lamb, 
because  he  was  absent  from  the  city,  and  a  quick  disposal 
of  it  was  deemed  advisable/  An  act  of  New  York,  **  De- 
claring certain  Persons  incapable  of  being  Members  of  the 
Assembly,"  appears  to  have  escaped  legal  examination  be- 
cause the  law  was  so  flagrantly  bad  as  to  render  it  super- 
fluous.^ After  1 718,  however,  such  cases  constituted  the 
rare  exception  and  not  the  rule.  Upon  the  other  hand,  in 
adopting  a  recommendcttion  of  the  law  officer,  the  Board 
nearly  always  incorporated  parts  of  his  opinion  in  its  rep- 
resentation. And  copies  of  his  report  were  often  sent  to 
the  governors  as  a  guide  in  enacting  future  legislation.^ 

The  influence  of  the  Board's  legal  advisers  upon  its  policy! 
in  legislative  review  can  scarcely  be  over-emphasized.  The 
king's  counsels,  holding  office  as  they  did  for  comparatively 
long  periods,  and  reviewing  practically  the  entire  volume  of 
colonial  legislation,  were  veritable  watch-dogs  of  legality^ 
Their  practised  eyes  were  quick  alike  to  note  undue  en- 
croachments upon  the  domain  of  individual  liberty,  unwar- 
ranted violations  of  the  security  of  private  property  and 
unseemly  infringements  upon  the  prerogatives  of  the  crown. 
They  strove,  not  always  successfully,  but  certainly  not  with- 
out effect,  to  keep  the  enactments  of  the  assemblies  within 
a  fair  degree  of  conformity  to  the  acts  of  Parliament  and  \ 
the  common  law. 

For  advice  regarding  the  confirmation  or  disallowance  of 
legislation  which  in  any  way  affected  the  revenues  of  the 
crown,  the  Board  of  Trade  turned  to  the  lords  of  the  treas- 

1  B.  T.  /.,  vol.  Ixv,  unpaged;  21  June  1758. 

2  B,  T.  /.,  vol.  Ixxvii,  pp.  83,  92;  4  April  1770. 
*  B.  T.  /.,  vol.  xxvii,  p.  92;  28  January  1718. 


70  REVIEW  OF  COLONIAL  LEGISLATION  [488 

ury  and  the  commissioners  of  the  customs.  From  the  latter 
body  they  requested  an  opinion  upon  many  laws  imposing 
restrictions  upon  trade  or  navigation.  Among  these  were 
acts  levying  customs  duties  and  prescribing  the  manner  of 
their  collection  by  establishing  ports  of  entry  or  fixing  col- 
lectors' fees.  Laws  regulating  the  production  or  the  ex- 
portation of  commodities,  such  as  hides  and  tobacco,  or 
levying  imposts  upon  goods  imported  from  Great  Britain, 
or  tending  in  any  way  to  diminish  the  volume  of  trade  be- 
tween the  mother  country  and  the  colonies,  and  consequently 
to  impair  the  crown  revenue,  were  also  referred  to  them 
from  time  to  time.  ^ 

Until  171 5  the  Board,  as  a  matter  of  formality,  sent  these 
acts  to  the  secretary  of  the  lords  of  the  treasury  with  a  re- 
quest that  they  "  move  the  Lord  High  Treasurer  that  the 
Board  may  have  the  opinion  of  the  Commissioners  of  the 
Customs."  And  in  due  time  the  report  of  the  commission- 
ers was  returned  through  the  same  channel.  Subsequently, 
however,  the  Board  addressed  letters  to  the  secretary  of  the 
commissioners  of  the  customs,  and  communications,  as  a 
rule,  passed  directly  between  the  two  bodies.^ 

*  Among  the  acts  referred  were  laws  of  Massachusetts,  "  To  Restrain 
the  Exportation  of  Raw  Hides,"  "  Establishing  Sea  Ports,"  "  Establish- 
ing a  Naval  Office,"  "Ascertaining  Fees,"  and  "Rates  and  Duties  of 
Tonnage,"  Acts  and  Resolves,  vol.  i,  pp.  153,  336,  364.  B.  T.  /.,  vol. 
xvi,  p.  45,  CO/5-260,  p.  261.  They  examined  laws  of  Virginia  for 
"  Preventing  Frauds  in  the  Customs,"  "  Establishing  Ports,"  and  several 
acts  for  "  Improving  the  Staple  of  Tobacco."  B.  T.  /.,  vol.  xiii,  p.  14. 
B.  T.  /.,  vol.  xix,  p.  157.  CO/5-1322,  R,  135.  CO/5-1366,  p.  532. 
Various  acts  from  Maryland,  Carolina  and  the  Island  colonies  were  re- 
ferred as  well.  CO/5-1273,  V,  no.  CO/5-403,  p.  9-  B.  T.  /.,  vol. 
Ixvi,  p.  22. 

^  There  were  two  variations  from  this  procedure.  In  1752  two  acts 
of  Virginia  "Amending  the  Staple  of  Tobacco "  and  "  Preventing 
Frauds  in  the  Customs  "  were  sent,  together  with  an  act  for  "  Settling 
the  Titles  and  Bounds  of  Lands  "  to  the  lords  of  the  treasury.  CO/5- 
i366,  p.  531.    Action  in  this  case  may  have  been  determined  by  the  fact 


489]  PROCEDURE  IN  REVIEW  71 

An  interesting  episode  occurred  in  1730,  when  the  Board 
referred  an  act  of  Virginia,  "Amending  the  Staple  of  To- 
bacco and  Preventing  Frauds  in  His  Majesty's  Customs," 
to  the  commissioners  of  the  customs.  They  returned  it  and 
asked  to  be  excused  from  giving  their  opinion  upon  acts  of 
the  assemblies  "unless  commanded  by  the  King  in  Council 
or  the  Lords  of  the  Treasury."  The  Board  replied  by  send- 
ing a  list  of  acts  upon  which  such  an  opinion  had  been  ren- 
dered in  the  past.  The  commissioners  then  expressed  a 
willingness  to  consider  any  measure  that  might  effect  the 
revenue  under  their  management,  and  asked  that  the  act  be 
returned,  at  the  same  time  insisting  that  they  be  excused 
from  considering  matters  of  trade  unless  commanded  by 
his  majesty  or  the  lords  of  the  treasury.  The  Board  re- 
turned the  act  with  a  request  for  an  opinion  "  so  far  as 
the  act  may  relate  to  the  revenue  under  their  management," 
which  was  doubtless  all  that  they  had  expected  in  the  first 
instance.  After  submitting  a  report,  the  secretary  for  the 
commissioners  wrote  to  the  Board  saying  that  they  were 
informed  that  the  agent  for  Virginia  had  complained  in  a 
memorial  of  not  receiving  an  opportunity  to  be  heard  while 
the  matter  was  under  consideration  before  them.  The 
Board  sent  them  a  copy  of  the  memorial,  to  which  the  com- 
missioners replied  at  length,  defending  themselves  from  the 
allegation  of  unfairness  and  answering  the  agent's  argu- 
ments in  favor  of  the  act.^ 

To  the  lords  of  the  treasury  the  Board  applied  also  for  i-*"*""^ 
advice  upon  legislation  affecting  quit  rents  or  the  revenues 

that  the  latter  act  was  one  with  which  the  commissioners  of  the  customs 
had   no   concern.     In    1753   a   law   of    Pennsylvania    for    "Regulating 
Fees  "  was  referred  to  the  commissioners  and  a  report  returned  through 
the  lords  of  the  treasury.    CO/5-1273,  V,  no. 
1  B.  T.  /.,  vol.  xxxix,  pp.  301,  313,  326.    B.  T.  I.,  vol.  xl,  pp.  15,  17, 

32,  41,  100.    CO/5-1322,  R,  133,  R,  135,  R,  137,  R,  141.    CO/5-1366, 
pp.  55,  58. 


72  REVIEW  OF  COLONIAL  LEGISLATION  [490 

derived  from  the  crown  lands.    In  1732  their  lordships  re- 
ported upon  an  act  of  this  kind  passed  in  South  Carolina ; 
but  in  subsequent  cases  they  delegated  the  task  to  the  audi- 
tor general  of  the  plantations.     Communications  between 
the  Board  and  the  auditor  continued,  as  a  rule,  to  pass 
through  the  hands  of  the  lords  of  the  treasury;  though 
here  again  there  was  a  tendency  upon  the  part  of  the  Board 
of  Trade  to  resort  to  a  simpler  procedure.^     The  lords  of    '''-3 
the  treasury  also  examined  and  gave  their  approval  to  three  i^^\ 
private  acts  of  New  York  relating  to  a  contract  for  farm-         \ 
ing  the  excise  there. ^ 

/    Although  it  was  the  general  policy  of  the  Board  to  con- 
sult the  treasury  regarding  laws  which  pertained  to  the  royal 
revenue,  the  matter  was  wholly  within  their  discretion  and 
many  acts  apparently  germane  to  the  subject  were  never  re- 
ferred.    Upon  the  other  hand,  the  treasury,  unlike  the  law 
officers,  was  actively  engaged  in  the  administration  of  the 
colonies  and  had  subordinate  officials  there  who  frequently 
j  furnished   information  regarding  questionable  legislation. 
I  Upon  the  strength  of  their  complaints  the  treasury  some- 
j  times  took  the  initiative  and  brought  the  laws  in  question 
V  to  the  attention  of  the  Board  of  Trade.     As  such  commu- 

*  The  treasury  condemned  a  law  of  South  Carolina  "  For  the  Remis- 
sion of  the  Arrears  of  Quit  Rents,"  and  to  their  solicitor  was  entrusted 
the  task  of  drafting  a  new  one.  CO/5-362,  D,  33;  6  October  1732. 
B.  T.  /.,  vol.  xlii,  p.  137.  An  act  of  Virginia  "  Settling  the  Titles  and 
Bounds  of  Lands"  was  referred  to  the  auditor  in  April  1751.  But  he 
failed  to  report  and  in  December  1757  the  Board  wrote  directly  to  the 
auditor  and  asked  for  an  opinion.  CO/5-1367,  p.  321.  CO/5-1329, 
X,  28.  His  report  was  addressed  to  the  Board  of  Trade.  An  act  of 
New  York  for  the  "  More  Easy  Recovery  of  Quit  Rents  "  was  referred 
in  December  1758  with  the  request  that  it  be  laid  before  the  auditor 
general.  B.  T.  J.,  vol.  Ixv;  13  December  1758.  CO/5-1129,  p.  142. 
The  auditor  reported  upon  another  quit  rent  act  of  New  York  in  De- 
cember 1770.    CO/5-1075,  p.  131. 

'CO/5-1053,  Cc,  124;  9  April  1724. 


491  ]  PROCEDURE  IN  REVIEW  73 

nications  carried,  either  by  statement  or  implication,  the 
endorsement  of  the  treasury,  no  further  reference  to  it  was 
usual/ 

Although  relatively  few  laws  from  the  colonies  came 
within  the  cognizance  of  the  lords  of  the  treasury,  or  their 
subordinates,  their  opinion  upon  such  as  concerned  the 
crown  revenue  appears  to  have  carried  great  weight.  An 
act  of  Virginia  for  regulating  the  growth  and  shipment  of 
tobacco,  upon  which  they  had  reported  unfavorably,  was 
suffered  to  lie  by  because  of  the  earnest  solicitations  of  the 
governor.  But  this  is  the  only  instance  in  which  their  con- 
demnation of  an  act  did  not  result  in  its  disallowance.^ 
t^^From  the  Bishop  of  London  the  Board  obtained  advice 
upon  laws  concerning  morality,  religion  and  the  Anglican 
Church.  Unlike  its  other  counselors,  the  bishops  were 
members  of  the  Board,  and  as  such  entitled  to  participate 
in  discussions  there  and  to  sign  its  representations.  They 
seldom  attended,  however,  and  when  they  did  do  so  they 
generally  came  in  response  to  a  special  request  from  the 
Board. ^    In  all,  the  bishops  submitted  written  reports  upon 

i^'^The  treasury  referred  to  the  Board  a  complaint  from  one  John 
Taylor  regarding  a  duty  levied  upon  his  ships  by  the  government  of 
New  England;  a  complaint  regarding  the  decrease  in  the  revenue  of 
the  post  office  caused  by  the  issuing  of  bills  of  credit  in  Massachusetts ; 
and  a  complaint  from  the  surveyor  general  of  customs  in  Carolina, 
against  an  act  laying  a  10%,  impost  upon  British  manufactures. 
CO/5-911,  p.  404;  4  January  1705.  CO/5-913,  PP-  383,  399;  June  1713. 
CO/5-1293,  p.  141 ;  20  March  1717.  Walpole,  Surveyor  General  of  the 
revenue,  presented  a  representation  regarding  a  New  York  quit  rent 
act;  and  the  secretary  of  the  treasury  forwarded  a  memorial  of  John 
Stewart,  a  contractor  for  transporting  felons,  against  acts  of  Virginia 
and  Maryland  which  imposed  restrictions  upon  the  importation  of  con- 
victs. B.  T.  /.,  vol.  lii,  pp.  I,  17 ;  I  February  1745.  A.  P.  C,  vol.  v,  p.  115 ; 
7  October  1767.  An  act  of  Florida  was  disallowed  upon  the  complaint 
of  the  collector  at  Pensacola.    A.  P.  C,  vol.  v,  p.  346;  19  June  1772. 

^CO/5-13^,  p.  72;  27  May  1731. 

'  The  Bishop  of  London  appears  to  have  been  in  attendance  not  over 


74  REVIEW  OF  COLONIAL  LEGISLATION  [492 

more  than  twenty  acts  of  the  assemblies.    The  majority  of 
these  were  referred  by  the  Board  with  a  request  for  an 
opinion.    But  in  several  cases  the  bishops  took  the  initiative 
by  requesting  that  no  action  be  taken  upon  a  law  until  they 
had  presented  their  views  upon  it.     The  majority  of  the 
acts  upon  which  they  reported  provided  for  the  establish- 
ment of  the  Anglican  Church,  the  organization  of  parishes 
or  the  settlement  and  maintenance  of  ministers.     They  sub- 
mitted opinions,  also,  regarding  three  acts  for  regulating 
marriage,  two  allowing  affirmations  in  place  of  oaths,  and 
one  act  for  the  suppression  of  vice  and  immorality.    A  good 
example  of  the  activity  and  influence  of  the  Bishop  of  Lon- 
/  don  is  afforded  by  the  fate  of  a  New  York  act  "  Declaring 
the  Town  of  East  Chester  a  distinct  Parish  from  West 
Chester."     After  repeatedly  calling  the  attention   of   the 
Board  to  this  law,  the  bishop  finally  secured  its  considera- 
tion in  January,  1703.     He  reported  that  it  was  "preju- 
dicial to  the  Church,  in  that  (without  establishing  any  fixed 
maintenance  for  a  minister  in  East  Chester)   it  does  im- 
peach a  former  act  which  did  make  a  convenient  settlement 
for  Ministers  of  that  and  several  other  Churches  named." 
The  law  was  accordingly  disallowed  in  February,   1703.^ 
In  but  few  cases,  however,  were  laws  repealed  upon  the 
/  sole  urgence  of  the  Bishop  of  London.     Those  regulating 
/    matters  of  a  more  general  nature,  such  as  marriages  or 
I    affirmations,  were,  as  a  rule,  open  to  objections  from  other 
I    sources.     In  1727  the  bishop  secured  the  promulgation  of 
\  instructions  to  the  governors  in  America,  directing  that  they 

half  a  dozen  times  between  1696  and  1776.  Twice,  in  regard  to  the 
Maryland  act  "  For  the  Worship  of  God  "  he  was  accompanied  by  the 
Archbishop  of  Canterbury.  B.  T.  I.,  vol.  xiii,  p.  343.  Once  he  sent  a 
personal  representative.    B.  T.  I.,  vol.  xv,  p.  16;  12  May  1702. 

1  CO/5-1047,  iR,  33.     B.  T.  /.,  vol.  vii,  p.  86.     CO/5-1 119,  p.  362. 
CO/5-1048,  V,  27. 


493]  PROCEDURE  IN  REVIEW  75 

cause  all  laws  against  blasphemy,  profaneness  and  immoral- 
ity to  be  vigorously  executed/ 

In  a  few  instances  the  Board  of  Trade  referred  laws  to 
the  post-master  general.  Upon  his  recommendation  an  act 
of  North  Carolina  was  disallowed  in  1772,  and  the  governor 
instructed  to  secure  a  new  law  free  from  the  objections 
which  he  had  raised  against  the  former.^  Upon  two  acts, 
one  from  Carolina,  "  Regulating  the  Court  of  Admiralty," 
and  another  from  Massachusetts,  "  Regulating  Fees,"  the 
Board  obtained  an  opinion  from  the  admiralty.^ 

Aside  from  the  law  officers,  no  opinion  carried  more 
weight  with  the  Board  than  did  that  of  the  English  mer- 
chants engaged  in  colonial  trade.  The  upbuilding  of  com- 
merce between  the  plantations  and  the  mother  country  was 
one  of  the  chief  ends  of  the  British  colonial  policy;  and  no 
one  had  a  better  practical  knowledge  of  the  subject  than 
they.     Moreover,  the  fact  that  their  financial  interests  fre- 

^  B.  T.  I.,  vol.  xxxvi,  pp.  Ill,  127,  128,  130,  139;  6  June  1727. 

^  CO/5-302,  p.  187.  CO/5-305,  p.  147.  A.  P.  C,  vol.  V,  p.  34;  6  May 
1772.  The  chief  objection  M^as  against  allowing  post  riders  in  certain 
cases  a  fee  of  one  shilling  a  mile.  This  was  deemed  exorbitant.  In 
1703  the  Board  referred  to  the  post  master  general  three  laws  of  New 
York  for  "  Encouraging  a  Post  Office."  He  replied  with  observations 
at  considerable  length,  but  the  Board  appears  to  have  taken  no  further 
action  in  the  matter.  B.  T.  /.,  vol.  viii,  p.  67.  CO/5-1 119,  P-  412. 
CO/5-1048,  W,  6.  He  also  reported  upon  the  draft  of  an  act  for  a 
post  office  in  Pennsylvania.    CO/5-1263,  N,  57;  20  November  1705. 

^  In  transmitting  the  Carolina  act  the  Board  inquired  as  to  its  con- 
sistency with  his  majesty's  commission  to  the  judge,  with  the  rights 
of  the  crown,  and  the  methods  of  proceeding  which  ought  to  be  ob- 
served there.  The  reply  was  unfavorable  and  some  correspondence  with 
the  proprietors  followed;  but  apparently  no  action  was  taken  by  the 
crown.  B.  T.  /.,  vol.  xiv,  p.  312.  CO/5-1261,  p.  44;  3  February  1702. 
The  lords  of  the  admiralty  offered  no  objection  to  the  Massachusetts 
law  regarding  fees.  B.  T.  /.,  vol.  xxviii,  p.  236.  CO/5-867,  W,  56; 
8  May  1719. 


K  7 


76  REVIEW  OF  COLONIAL  LEGISLATION  [494 

quently  were  affected  adversely  by  colonial  legislation  upon 
matters  of  finance  and  trade,  caused  them  to  keep  close 
watch  for  the  enactment  of  such  laws,  and  quickly  to  regis- 
ter objections  against  those  of  which  they  did  not  approve. 
Indeed,  in  some  cases,  their  complaints  reached  the  Board 
before  copies  of  the  acts  themselves  had  arrived  from  the 
colony.  Occasionally,  on  the  other  hand,  the  Board  took 
the  initiative,  and,  despite  the  fact  that  the  merchants  pos- 
sessed no  official  status,  requested  from  them  advice  or  in- 
formation. Because  of  their  proximity,  the  merchants  of 
London  were  most  often  in  evidence.  But  certain  acts  con- 
cerning the  slave  and  tobacco  trades  called  forth  remon- 
strances, as  well  from  those  of  the  "  out  ports,"  Bristol, 
Liverpool  and  Glasgow.^  Usually  several  of  the  merchants 
appeared  at  the  Board  whenever  one  of  their  memorials 
came  up  for  consideration,  and  one  or  two  of  the  more 
prominent  spoke  in  support  of  their  petition,  or  to  refute 
arguments  advanced  by  the  agent.  At  the  more  important 
**  hearings,"  when  the  proceedings  assumed  the  formality 
of  a  trial  at  law,  the  merchants  intrusted  the  management 
of  their  case  to  a  solicitor,  and  did  not  address  the  Board 
unless  requested  to  give  an  opinion  or  to  impart  additional 
information. 

Precisely  how  much  influence  the  merchants  exerted  in 
determining  the  fate  of  any  particular  enactment,  it  is  diffi- 
cult to  say.  Their  petitions  were,  for  the  most  part,  in 
accord  with  established  commercial  policy,  and  doubtless 
many  acts  disallowed  at  their  request  would  have  met  the 
same  fate  eventually  without  such  interposition.  But 
others  which  were  free  from  legal  objection  would  certainly 

*  Such  petitions  had,  upon  an  average,  about  ten  signers.  In  some 
cases  their  wording  is  so  similar  as  to  suggest  that  the  merchants  of 
different  ports,  acting  in  concert,  entrusted  the  writing  of  them  to  the 
same  person. 


495]  PROCEDURE  IN  REVIEW  77 

have  passed  unnoticed.  Moreover,  the  fact  that  laws  re- 
garding trade  and  finance  were  being  brought  continually 
to  the  attention  of  the  Board  contributed,  in  turn,  to  the 
development  of  a  more  effective  and  consistent  policy  upon 
those  subjects.  The  protests  of  the  merchants  were  most 
numerous  and  at  the  same  time  most  effective  against  laws 
imposing  obstacles  to  the  collection  of  their  debts.  These 
include  bankruptcy  legislation,  stay  laws,  and  acts  regulating 
bills  of  exchange  and  executions  upon  judgments.  Next  in 
point  of  number  were  petitions  for  the  disallowance  of  acts 
authorizing  the  emission  of  bills  of  credit.  These,  how- 
ever, seldom  accomplish  their  whole  purpose,  because  the 
Board  came  to  realize  that  some  form  of  currency  was  an 
economic  necessity  in  the  colonies,  and  because  they  hesi- 
tated to  annul  laws  under  which  bills  had  already  been 
issued.  The  merchants  complained  also  against  many  acts 
levying  duties  upon  the  importation  of  liquors,  slaves  or 
goods  of  British  manufacture.  Here  they  generally  accom- 
plished their  object  by  securing  the  disallowance  of  the 
offensive  law,  or  at  least  an  instruction  for  the  passage  of 
an  amendment  repealing  the  particular  duty  in  question. 
Other  memorials  had  to  do  with  acts  of  Virginia  and  Mary- 
land for  regulating  the  growth  and  export  of  tobacco,  laws 
governing  the  conduct  of  the  fisheries  or  the  Indian  trade, 
or  providing  for  the  erection  of  ports  and  towns.  The 
activity  and  influence  of  the  merchants  at  the  Board  of 
Trade  did  not  escape  notice  in  the  colonies,  and  letters  from 
the  governors  sometimes  betray  the  presence  of  consider- 
able ill  feeling  against  them  occasioned  by  the  disallowanceX 
of  a  popular  law.^ 

For  information  regarding  the  aim  and  purpose  of  colo-  y^'  ^   g 

^Gooch  of  Va.  to  the  Board,  CO/5-1322,  R,  160;  22  December  1731. 
Fauquier  of  Va,  to  the  Board,  CO/5-1330,  Y,  85;  29  June  1763. 


78  REVIEW  OF  COLONIAL  LEGISLATION  [496 

nial  legislation  and  the  special  circumstances  leading  to  its 
enactment,  the  Board  of  Trade  was  dependent  upon  two 
principal  sources :  the  representations  of  the  agents  in  Eng- 
land, and  letters  received  from  the  governors/  Soon  after 
its  formation  the  Board,  wishing  to  discuss  the  raising  of 
levies  with  representatives  of  the  various  colonies,  noted  a 
want  of  authorized  agents  with  whom  to  consult.  Accord- 
ingly it  was  ordered  that  the  next  letters  to  Virginia,  Mary- 
land and  New  York  should  intimate  that  various  other 
places  had  agents,  and  that  the  want  of  them  was  an  in- 
convenience, "  and  may  happen  in  some  occasion  to  prove 
prejudicial  to  them,  by  delays  in  their  public  affairs,  and  loss 
of  opportunities  for  their  public  advantages."  And  in  like 
manner  the  Board  on  other  occasions  urged  upon  Massa- 
chusetts, Maryland  and  New  Jersey  the  expediency  of  main- 
taining accredited  agents  in  England.^  Eventually  all  the 
colonies  complied  with  this  advice.  From  time  to  time  the 
Board  required  agents  to  appear  and  present  their  creden- 
tials, apparently  in  order  that  there  might  be  available  a 
correct  list  of  persons  serving  in  that  capacity.^ 

^The  official  journals  of  the  council  and  assembly  were  also  to  a 
certain  extent  useful  for  this  purpose. 

25.  T.  /.,  vol.  X,  pp.  310,  311 ;  15  October  1697.  C.  S.  P.,  1700,  p.  629; 
30  October  1700.  The  Board  wrote  to  Gov.  Blackiston  of  Maryland : 
"  It  will  be  for  the  service  of  the  Province  that  an  Agent  be  con- 
stituted, with  authority  *  to  solicit  the  dispatch  of  acts  *  *  and  all 
other  public  business.  *  The  charge  need  not  be  great.  It  is  a  thing 
done  "by  most  of  the  Plantations,  and  proves  very  useful  to  them  *" 
C.  S.  P.,  1700,  p.  709;  3  December  1700.  Also  CO/S-726,  p.  99. 
CO/5-1123,  p.  441. 

3  B.  T.  J.,  vol.  xxvii,  p.  34;  December  1718.  B.  T.  /.,  vol.  Ixi,  unpaged ; 
19  December  1754.  In  1740  the  Board  summoned  all  the  agents  to  at- 
t^d  for  a  discussion  "  at  large  of  the  Problem  of  Paper  Currency  in 
the  Colonies."  They,  however,  proved  non-committal,  saying  that  they 
had  received  no  instructions  in  the  matter.    B.  T.  /.,  vol.  xlviii,  p.  94. 

In  regard  to  local  disputes  caused  by  agents  being  appointed  by  the 
lower  house  without  the  concurrence  of  the  governor  and  council,  the 


497]  PROCEDURE  IN  REVIEW  79 

The  most  important  duty  of  the  agent  was  that  of  over- 
seeing and  furthering  the  review  and  confirmation  of  legis- 
lation. As  a  rule,  public  acts  progressed  with  reasonable 
promptness  from  the  Board  to  the  law  officer  without  the 
necessity  of  urgency  upon  the  agent's  part.  Having  in- 
formed himself  regarding  legislation  by  letters  from  the 
colony  or  any  other  means  at  his  disposal,  it  behooved  the 
agent  to  wait  upon  the  law  officer  and  solicit  a  report.  After 
obtaining  this  he  sometimes  attended  the  Board  to  ask  for 
an  early  consideration  of  acts  there.  When  they  were  taken 
up  he  was  on  hand  once  more  to  furnish  whatever  infor- 
mation was  required  and  tO'  explain  away  objections.  If 
opposition  to  the  confirmation  of  an  act  led  tO'  a  formal 
hearing  before  the  Board,  the  agent  either  defended  the  in- 
terests of  the  colony  in  the  matter  or,  in  the  more  important 
cases,  employed  a  solicitor  to  do  so.  The  work  of  the  agents 
in  preventing  delays,  and  in  explaining  legislation  to  the 
Board  in  the  most  favorable  light,  was  of  the  greatest  im- 
portance.^ Unfortunately,  however,  the  position  was  often 
held  by  Englishmen  with  little  first-hand  knowledge  of  colo- 
nial conditions,  or  by  Americans  who  having  been  long 
resident  in  England,  were  out  of  touch  with  colonial  affairs, 
and  consequently  dependent  upon  information  and  instruc- 
tions from  the  colony.  Having  failed,  either  from  mishap 
or  neglect,  to  receive  these,  they  were  obliged  either  to  ask 
the  Board  for  a  long  delay,  or  to  defend  the  act  in  question 

Board  took  no  decisive  stand,  although  it  insisted  in  a  general  way 
that  agents  representing  a  colony  should  be  appointed  by  the  governor, 
council  and  assembly.  In  1771  Governor  Hutschinson  was  instructed 
to  that  effect.    CO/5-920,  p.  309. 

*  On  May  28,  1754  the  Board  made  a  representation  for  the  repeal  of 
nine  acts  of  South  Carolina.  On  June  26  Mr.  Orockatt,  the  agent,  was 
called  in.  After  he  was  gone  the  Board  agreed  to  allow  the  acts  to 
lye  by.    Dickerson,  A}7i.  Col.  Govt.,  p.  267,  note  628. 


8o  REVIEW  OF  COLONIAL  LEGISLATION  [498 

without  an  adequate  knowledge  of  the  subject/  Moreover, 
the  agent  spoke  with  the  professional  bias  of  a  solicitor 
bound  to  further  the  interests  of  clients  rather  than  to  give 
an  unprejudiced  opinion  based  upon  the  best  information 
at  his  disposal. 

Of  far  greater  value  to  the  Board  of  Trade  were  the 
(/  comments  which,  in  accordance  with  their  instructions,  the 
governors  transmitted  upon  all  legislation.  Their  fullness 
and  accuracy  varied  considerably  according  to  the  ability 
and  political  insight  and  prejudice  of  the  different  gover- 
nors, and  they  were  subject  necessarily  to  a  strong  official 
bias.  Nevertheless,  such  comments  came  first-hand  from 
one  in  close  touch  with  the  colony,  and  therefore  informed 
in  regard  to  local  need  and  sentiment.  Regarding  acts  of 
unusual  importance  or  of  doubtful  propriety,  governors 
were  apt  to  write  at  considerable  length.  Others  they  often 
grouped,  attaching  brief  comments,  such  as  "  beneficial," 
"  customary,"  or  "  fit  to  be  allowed."  Consequently,  it  was 
not  unusual  for  the  Board  to  allow  an  act  to  lie  by,  while 
they  wrote  to  the  governor  for  a  more  detailed  account  of 
his  reasons  for  passing  it.  In  some  instances  governors  be- 
trayed a  naive  and  amazing  unconsciousness  of  defects  in 
laws  which  they  recommended  for  confirmation.  Again, 
they  frankly  acknowledged  the  existence  of  grave  faults, 
stating,  in  effect,  that  having  resisted  popular  clamor  for 
legislation  even  more  objectionable,  it  seemed  best  to  assent 
and  so  place  the  burden  of  refusal  upon  the  government  in 
England.  Or  again  the  governor  protected  himself  by 
securing  the  inclusion  of   a  suspending  clause,   and  then 

*  On  July  24,  1735,  Guerin,  Agent  for  New  York  told  the  Board  that 
he  was  not  ready  to  offer  reasons  for  passing  an  act  regarding  bills  of 
credit.  B.  T.  /.,  vol.  xliv,  p.  151.  Furie,  agent  of  South  Carolina, 
failed  to  speak  in  defence  of  a  fee  act,  because  he  had  no  instructions 
regarding  the  law,  and  did  not  know  the  reasons  for  it.  B.  T.  J.,  vol. 
xlvi,  p.  40;  10  March  1737. 


499]  PROCEDURE  IN  REVIEW  gl 

damning  the  act  by  faint  praise.  A  governor  who  stood 
well  with  the  Board,  and  could  justify  his  recommendations 
in  an  able  fashion,  was  in  a  position  to  exert  no  inconsid-  ,. 
erable  influence  upon  the  fate  of  legislation.  A  conspicuous 
example  of  this  fact  is  afforded  by  the  manner  in  which 
Governor  Gooch  of  Virginia  secured  legislation  regulating 
the  growth  and  exportation  of  tobacco,  although  his  law 
was  opposed  by  a  considerable  body  of  local  sentiment  and, 
in  no  uncertain  terms,  by  the  commissioners  of  customs/ 
Notwithstanding  strong  objections  from  the  king's  counsel, 
a  New  Hampshire  law  for  "  Restraining  the  Taking  of 
Excessive  Usury  "  was  confirmed  because  the  governor  had 
written  that  it  was  of  the  greatest  importance  to  the  prov- 
ince.^ An  opportune  letter  from  Governor  Shirley  secured 
the  confirmation  of  a  Massachusetts  excise  act,  despite 
strong  opposition  from  the  province;  while  in  1761  Gov- 
ernor Ellis,  of  Georgia,  appeared  before  the  Board  and 
saved  a  law  concerning  the  recovery  of  debts,  for  the  dis- 
allowance of  which  a  representation  had  already  been 
drawn.  ^ 

In  conclusion,  a  study  of  the  Board  of  Trade  reveals  a\ 
small  group  of  expert  colonial  advisers,  in  close  touch  with 
the  high  officials  of  state,  with  the  legal  advisers  of  the 
crown  and  with  the  several  administrative  departments  of 
the  government;  a  body  sensitive  to  conflicting  interests, 
fair,  painstaking  and  laborious,  but  possessing  withal  no. 
very  great  powers. 

^A.  P.  C,  vol.  iii,  p.  326.    Cf.  infra,  p.  118. 

'  CO/5-930,  p.  'JT.  CO/5-943,  P-  16.  A.  P.  C,  vol.  V,  p.  282 ;  9  Decem- 
ber   1770. 

*  CO/5-918,  p.  325;  6  August  1755.  B.  T.  /.,  vol.  Ixviii,  pp.  281,  282; 
6  June  1 761.  These  examples,  however,  should  not  be  accorded  undue 
weight.  A  much  greater  number  might  easily  be  gfiven  in  which  laws 
recommended  by  the  governor  in  the  strongest  terms,  were  found 
objectionable  and  forthwith  disallowed. 


^    iTrac 


82  REVIEW  OF  COLONIAL  LEGISLATION  [500 

Unless  neglected  or  laid  by  probationary  at  the  Board  of 
Trade,  laws  progressed,  together  with  the  report  or  repre- 
sentation upon  them,  to  the  Privy  Council,  by  an  order  of 
which  they  were  confirmed  or  disallowed,  or  in  some  cases 
left  conditionally  in  force/  For  several  years  subsequent 
to  1696  the  Council  scrutinized  the  findings  and  recommen- 
dations of  the  Board  rather  closely.  In  one  instance  it  sent 
a  representation  to  the  attorney  and  solicitor  general  with 
the  request  that  they  report  upon  it ;  ^  but  in  no  case  during 
this  period  was  its  final  action  upon  a  law  contrary  to  that 
recommended  by  the  Board.  After  1710,  however,  the 
Council  gradually  acquired  a  habit  of  delegating  the  exam- 
ination of  legislation,  and  the  recommendations  from  the 
Board  pertaining  to  it,  to  a  committee  of  its  own  members, 
whose  findings  it  invariably  indorsed  without  question.  The 
proceedings  of  the  Council  in  this  connection  were  thence- 
forth purely  formal.  The  part  taken  by  the  committee  in 
legislative  review  becomes,  therefore,  of  sufficient  impor- 
tance to  warrant  a  somewhat  detailed  consideration. 

During  the  early  part  of  the  eighteenth  century  the 
Privy  Council  for  the  most  part  relinquished  the  exercise 
of  its  discretion  to  a  small  group  of  its  own  members,  re- 
taining to  itself  little  authority  save  in  matters  of  formal 
and  customary  procedure.  The  process  by  which  this 
change  came  about  is  obscure,  and  lies  without  the  limits 

*The  precise  wording  of  the  order  in  council  varies  considerably 
from  time  to  time.  In  some  cases  the  act  was  inserted  in  full.  But 
the  usual  course  was  to  give  only  the  title  and  date  of  passage.  The 
action  is  represented  as  being  taken  by  "  His  Majesty  in  Council,"  or 
by  "His  Majesty  with  the  advice  of  the  Privy  Council,"  or  by  the 
"Lords  Justices  with  the  advice  of  the  Privy  Council."  It  is  usually 
stated,  also,  that  the  Council  has  acted  upon  the  advice  of  the  Board 
of  Trade,  or  of  the  Board  and  a  committee  of  the  Council. 

*  C.  S.  P.,  1697-8,  p.  523 ;  3  November  1698. 


501]  PROCEDURE  IN  REVIEW  83 

of  this  Study/  Suffice  it  to  say  that  after  1710  acts  were 
referred  by  the  Council  with  increasing  frequency  to  "the 
Committee  on  Appeals,"  "the  Committee  of  the  Whole 
Council,"  "a  Committee  for  the  Plantations,"  or  simply 
to  "  the  Committee  " — terms  which  were  sometimes  used 
interchangeably.^  The  body  thus  designated  seems  to  have 
had  no  fixed  membership,  but  rather  to  have  consisted  of 
members  of  the  whole  Council  working  now  upon  one  kind 
of  business  and  now  upon  another,  for  the  time  being. 
In  1702  a  representation  of  the  Board  upon,  several  Bar- 
badoes  laws  was  referred  to  the  "  Lords  of  a  Commit- 
tee of  the  whole  Council,"  and  upon  their  recommenda- 
tion one  of  the  acts  was  disallowed/  And  on  the  same 
day  a  committee  of  the  whole,  having  obtained  an  opinion 
from  the  attorney  general,  recommended  that  Governor 
Lord  Combury  of  New  York  be  instructed  to  induce  the 
assembly  to  repeal  an  objectionable  clause  of  their  enact- 
ment.* The  next  reference  involving  colonial  legislation 
occurred  in  17 14,  when  the  "Committee  for  hearing  Ap- 
peals "  returned  a  representation  upon  several  Pennsylvania 
laws  to  the  Board,  with  the  request  that  they  investigate 
and  report  back  "  by  what  grants  or  authorities  several  of  ^^ 
His  Majesty's  Plantations  do  claim  a  power  of  making  \ 
temporary  laws." '/^After  the  accession  of  the  Whigs  to 
power  in  17 14,  references  to  the  committee  become  some- 

*  For  a  full  discussion  of  the  matter  see  an  article  by  E.  R.  Turner, 
entitled  "  The  Development  of  the  Cabinet,  169^1760,"  in  the  American 
Historical  Review,  vol.  xviii,  pp.  756-768,  and  vol.  xix,  pp.  27-43. 
Pages  758  and  759  of  the  former  volume  are  in  particular  germane 
to  the  subject.  See  also,  Andrews  and  Davenport,  Guide  to  the  MS. 
Material  in  the  British  Museum,  pp.  172,  173. 

"  A.  P.  C,  Introd.,  vol.  ii,  pp.  vi,  xi,  and  vol.  iii,  pp.  viii,  ix. 
'  A.  P.  C,  vol.  ii,  p.  415 ;  6  July  1702. 

*  A.  P.  C,  vol.  ii,  p.  413 ;  9  July  1702. 

*  B.  T.  J.,  vol.  xxiv,  pp.  228,  229.    CO/5-1292,  p.  418;  2  September  1714. 


84  REVIEW  OF  COLONIAL  LEGISLATION  [502 

what  more  frequent.  There  occurred  one  in  October,  1714, 
one  in  171 5,  one  in  17 19,  and  two  in  1720.  During  the 
decade  following  the  increase  is  gradual  though  constant, 
until  by  1731  the  reference  of  acts  by  the  Council  to  the 
Board  through  the  committee  had  become  the  rule,  and 
reference  directly  to  the  Board  the  rare  exception/  The 
Board,  in  turn,  came  gradually  to  address  its  reports  to  the 
"  Lords  of  the  Committee  "  rather  than  to  "  His  Majesty 
in  Council."  In  the  great  majority  of  cases  the  committee, 
after  examining  acts,  simply  endorsed  the  recommendations 
in  regard  to  them  already  made  by  the  Board  of  Trade. 
Indeed,  their  reports  which  appear  in  the  Acts  of  the  Privy 
Council  consist  almost  exclusively  of  Board  representations 
adopted  with  little  or  no  alteration. 

Various  deviations  from  the  customary  procedure,  how- 
ever, emphasize  the  fact  that  the  increasing  initiative  and 
activity  of  the  committee  necessarily  resulted  in  a  corres- 
ponding decrease  in  the  prestige  and  authority  of  the  Board 
of  Trade.  The  former  sometimes  sent  acts  and  represen- 
tations back  to  the  Board  for  further  consideration.^  Or 
again  it  referred  them  to  the  treasury,  or  the  attorney  and 

*  After  about  1758  the  Council  sometimes  referred  business  directly 
to  the  Board,  with  directions  to  report  to  the  committee.  A.  P.  C, 
vol.  iv,  Introd.,  vol.  vi.    A.  P.  C,  vol.  iv,  p.  367. 

^A.  P.  C,  vol.  iii,  p.  225;  22  May  1729.  The  committee  sometimes 
attained  much  the  same  result  by  summoning  the  Board  to  meet  with 
itself  in  joint  session.  The  journal  for  1731,  for  example,  contains  the 
following  entry :  "  The  Board  at  the  desire  of  the  Lords  of  the  Com- 
mittee having  attended  them  this  morning,  the  Committee  took  into 
consideration  the  following  reports  of  this  Board.  [Three  reports 
upon  acts  of  New  Jersey,  Jamaica  and  South  Carolina.]  The  Lords 
of  the  Committee  then  desired  the  Board  would  please  to  attend  again 
tomorrow  Senight  to  hear  what  the  Agent  for  New  England  had  to 
offer  regarding  two  articles  in  the  Governor's  instructions."  B.  T.  J., 
vol.  xl,  pp.  287,  288.  See  also  CO/s-870,  Z,  71;  15  October  1729. 
B.  T.  /.,  vol.  xl,  pp.  196,  202;  28  July  1731.  B.  T.  /.,  vol.  xliv,  p.  102; 
17  June  1735. 


503]  PROCEDURE  IN  REVIEW  85 

solicitor  general,  with  instructions  to  report,  not  to  the 
Board,  but  to  itself.^  The  committee  sometimes  overruled 
the  Board's  suggestions  for  instructions  to  governors,  or 
took  the  initiative  in  suggesting  new  ones.*  In  some  cases 
it  even  reversed  the  recommendations  of  the  Board  in  re- 
gard to  the  confirmation  or  disallowance  of  acts.  A  con- 
spicuous example  of  this  is  afforded  by  the  course  of  a  New 
York  act  levying  a  two  per  cent  tax  upon  the  importation 
of  European  goods.  The  Board,  while  objecting  to  the  tax 
imposed,  recommended  its  confirmation  because  of  the 
"  present  necessity  of  the  government."  But  the  committee, 
influenced  probably  by  the  merchants,  insisted  upon  its  dis- 
allowance.^ In  like  manner,  an  act  of  Antigua,  constituting 
a  court  of  attachments,  was  disallowed  upon  the  recommen- 
dation of  the  attorney  and  solicitor  generals,  although  the 
Board  had  urged  its  confirmation.* 

Parties  dissatisfied  with  the  outcome  of  a  hearing  at  the 
Board  could  continue  the  contest  before  the  committee. 
There  the  procedure  was  more  formal,  each  side  filing  a 
written  brief  and  being  heard  by  counsel  only.  If  new  and 
important  facts  were  brought  out,  the  committee  might  refer 
the  whole  matter  to  the  Board  for  further  consideration.* 
As  the  work  done  in  committee  became  of  more  importance, 
the  attendance  there  seems  to  have  increased,  until  often 
after  the  middle  of  the  century  a  committee  was  merely  the 
Council  sitting  as  such,  a  transition  from  one  to  the  other 

» A.  P.  C,  vol.  iii,  pp.  55,  350.    CO/5-1366,  p.  344-    CO/5-879,  Cc,  4. 

^A.  P.  C,  vol.  iii,  Introd.,  pp.  xix,  605,  606,  695.  A.  P.  C,  vol.  iv,  pp. 
153,  712.    B.  T.  J.,  vol.  lix;  15  February  1752. 

'The  act  contained  a  suspending  clause  and  two  years  elapsed  be- 
tween the  Board's  representation  and  the  report  of  the  committee. 
CO/5-1124,  p.  283.    CO/5-1053,  €c,  125. 

M.  P.  C,  vol.  iii,  pp.  180;  23  November  1728.  A.  P.  C,  vol.  iii,  p.  63; 
Barbadoes,  21  February  1724. 

^  A.  P.  C,  vol.  V,  p.  351 ;  Jamaica,  19  December  1772. 


86  REVIEW  OF  COLONIAL  LEGISLATION  [504 

being  indicated  in  the  Acts  of  the  Council  by  the  words, 
"  afterwards  their  Lordships  sat  as  a  Committee."  ^  The 
committee  report  upon  a  Massachusetts  act  of  "  Indemnity  " 
in  1767,  was  signed  by  twenty-six  persons,  including  the 
lord  chancellor,  the  lord  president  and  the  chancellor  of  the 
exchequer,  while  the  order  in  council  carried  thirty-one 
names.  Thirteen  signatures  appear  upon  both  documents.* 
This  law,  however,  had  aroused  much  interest.  The  usual 
attendance  in  committee  was  probably  not  so  large,  even 
during  this  later  period. 

^A.P.  C,  vol.  iv,  Introd.,  p.  ix,  p.  207. 
» CO/5-892,  p.  447. 


CHAPTER  III 

The  Procedure  of  the  Government  in 
Legislative  Review  (Continued) 

By  means  of  instructions    limiting    the  discretion  of  l*^  ' 

governors  in  giving  assent  to  proposed  legislation,  the 
the  government  exercised  a  considerable  restraint  upon 
the  law-making  power  of  the  legislatures  in  the  royal 
colonies.  At  the  close  of  the  seventeenth  century  it  had 
already  imposed  general  rules  regarding  the  form  of 
enactments  and  the  manner  of  their  transmission.  It 
was  insisted  that  enacting  clauses  should  read  "by  the 
Governor,  Council  and  Assembly,"  and  that  each  separate 
act  should  deal  with  but  one  subject,  and  contain  no  clause 
foreign  to  its  title.'  Unless  passed  for  a  temporary  end, 
acts  must  be  of  indefinite  duration ;  while  laws  for  levy- 
ing money  were  not  to  continue  for  less  than  one  year.* 
Governors  were  not  to  re-enact  any  law  except  upon 
very  urgent  occasions,  and  in  no  case  more  than  once 
without  his  majesty's  express  consent.  Acts  altering, 
confirming  or  suspending  other  acts  must  indicate  by 
title  and  date  of  passage  the  precise  laws  effected.^ 

Governors  were  instructed  to  transmit  laws  within 
three  months  from  the  time  of  their  enactment  and  to 
send  duplicates  by  the  next  conveyance,  upon  pain  of 

*  ^"0/5-1362,  p.  141 ;  Virginia,  22  April  1717. 
'  CO/5-726,  p.  177.    C-0/5-9I4,  P-  378. 

^C.  S.  P.,  1669-1674,  p.  625;  Jamaica,  1674.    CO/s-914,  p.  378;  in- 
struction to  Shirley,  18  July  17 16. 

505]  87 


88  REVIEW  OF  COLONIAL  LEGISLATION  [506 

forfeiting  one  year's  salary.'  Each  act  was  to  bear  in 
wax  a  separate  imprint  of  the  provincial  seal.  It  was  to 
be  carefully  abstracted  in  the  margins,  and  to  bear  the 
dates  of  its  passage  by  the  governor,  council  and  assem- 
bly. The  governor  was  to  be  "  as  particular  as  may  be  " 
in  his  observations  upon  every  act ;  *'  whether  .  .  introduc- 
tive  of  a  new  Law,  declaratory  of  a  former  Law,  or 
whether  [it]  does  repeal  a  Law  then  before  in  being;  .  . 
and  to  send  .  .  the  reasons  for  the  passing  of  such  law, 
unless  the  same  do  fully  appear  in  the  preamble." 
Copies  of  the  official  journals  of  the  council  and  assembly 
were  to  accompany  acts.'' 

Other  instructions  of  a  more  detailed  and  specific 
nature  forbade  the  governor's  assent  to  laws  for  the  ac- 
complishment of  certain  ends,  such  as  laying  a  duty  upon 
European  goods  imported  in  English  vessels,^  or  placing 
inhabitants  of  the  colonies  upon  a  more  advantageous 
footing  than  those  of  Great  Britain,  or  affecting  the  trade 
or  navigation  of  Great  Britain,  or  levying  duties  upon 
British  shipping  or  the  product  of  British  manufactures.^* 


*C.  S.  P.,  1677-80,  p.  608;  30  September  1680.  N.  Y.  Col.  Docs.,  vol. 
iii,  p.  378.  The  governor  of  Jamaica  was  instructed  in  1670  to  transmit 
laws  "  at  the  first  opportunity."  C.  S.  P.,  1669-74,  p.  625.  This  phrase 
was  used  also  in  the  case  of  New  Hampshire,  possibly  because  com- 
munication with  England  was  uncertain.  But  the  form  quoted  above 
was  the  usual  one  after  1680. 

'CO/5-1293,  p.  339;  Pennsylvania,  1724.  A^.  Y.  Col.  Docs.,  vol.  v, 
p.  127;  27  December  1709.  CO/5-907,  p.  103;  Massachusetts,  30  Janu- 
ary 1697.  The  Board  suggested  to  Bellomont  that  acts  be  in  a  form 
convenient  for  binding.  CO/S-1118,  p.  120.  After  the  first  quarter 
of  the  eighteenth  century  most  of  the  laws  were  transmitted  in  print. 

"iV.  y.  Col.  Docs.,  vol.  V,  p.  706.    CO/5-1053,  €c,  125;  30  April  1724. 

*A.  P.  C,  vol.  iii,  p.  348;  27  January  1732.  N.  H.  St.  Papers,  vol. 
xviii,  p.  45;  5  May  1732.  There  were  prohibitions  against  acts  making 
duties  upon  negroes  payable  by  the  importer,  or  imposing  duties  upon 


507]  PROCEDURE  IN  REVIEW  89 

In  other  cases  the  prohibition  was  conditional,  usually 
upon  the  insertion  of  a  clause  suspending  the  operation 
of  the  act  until  his  majesty's  pleasure  concerning  it  could 
be  known.  Thus,  for  many  years  governors  were  for- 
bidden to  pass  laws  emitting  bills  of  credit  without  a 
suspending  clause ;  and  it  was  a  standing  rule  that  there 
should  be  no  laws  "  of  an  unusual  or  extraordinary  nature, 
wherein  his  majesty's  prerogative  or  the  property  of  his 
subjects  might  be  predjudiced "  without  consent  pre- 
viously obtained  or  the  insertion  of  a  suspending  clause/ 
While  the  greater  part  of  these  instructions  were  of  a 
general  nature,  and  binding  upon  all  the  governors, 
others  had  to  do  with  local  concerns  and  were  issued  j 
only  to  governors  of  particular  colonies.  In  1770,  for 
example,  Virginia  was  forbidden  to  pass  any  law  increas- 
ing the  duty  already  established  upon  the  importation 
of  slaves  ;  ^  while  Massachusetts  was  forbidden  to  appoint 
an  agent  otherwise  than  by  an  act  of  the  whole  legisla- 
ture, or  to  levy  a  tax  upon  the  salaries  of  government 
officials,  except  such  as  were  paid  by  the  assembly .^ 

This  method  of  controlling  the  assemblies  was  more 
effective  than  the  disallowance  of  laws  already  passed 
because  its  operation  was  more  uniform  in  all  the  colo- 

the  importation  of  felons.  CO/5-1128,  p.  139;  5  July  1753.  In  1767 
acts  by  which  the  number  of  members  in  the  Assemblies  were  enlarged 
or  diminished  were  forbidden;  (B.  T.  J.,  vol.  Ixxix,  p.  250.  N.  Y. 
Col.  Docs.,  vol.  viii,  p.  175)  in  1771  laws  by  which  the  property  of  non- 
residents was  made  liable  for  the  payment  of  debts;  (CO/5-999,  P-  246) 
and  in  1773  laws  for  naturalization  or  divorce,  or  the  confirmation  of 
land  titles.  CO/5-930,  p.  563.  B.  T.  J.,  vol.  Ixxx,  p.  142.  A.  P.  C, 
vol.  V,  p.  552.    This  list  is  not  exhaustive. 

*  Instruction  to  Shirley  CO/5-914,  p.  378;  18  July  1716. 

^  CO/5-1334,  €c,  8;  9  December  1770.  A.  P.  C,  vol.  iv,  p.  746; 
II  July  1766. 

•CO/5-920,  p.  309;  16  March  1771. 


90  REVIEW  OF  COLONIAL  LEGISLATION  [508 

nies,  and  because  it  was  preventative  and  served  to  check 
abuses  at  their  source.  A  legislative  indiscretion  upon 
the  part  of  one  or  two  of  the  assemblies  was  apt  to  be 
met  by  a  general  instruction,  which  more  or  less  effec- 
tively locked  the  stable  door  so  far  as  the  other  colonies 
were  concerned.  Instructions  once  issued  were  contin- 
ued in  succeeding  documents  unless  it  became  evident 
that  because  of  changed  conditions  or  circumstances 
they  were  no  longer  required.  In  1738  the  Board  "di- 
gested under  several  heads,  such  as  Council,  Assembly, 
Militia"  all  general  instructions.  In  this  manner  a 
recognized  form  became  established,  and  the  Board  in 
making  its  representation  upon  the  draft  of  a  new  gov- 
ernor's instructions  noted  only  such  articles  as  were 
added  to  or  differed  from  those  issued  to  his  predeces- 
sor/ 

Other  instructions  were  mandatory  rather  than  prohibi- 
tive, bidding  the  governors  to  urge  upon  the  assemblies  the 
passage  of  certain  salutary  laws.  In  this  fashion  the  Board 
recommended  the  enactment  of  laws  to  secure  the  humane 
treatment  of  negro  slaves  and  Indians,  and  to  obtain  per- 
manent acts  for  regulating  the  militia.^  The  governor  of 
Maryland  was  instructed  to  "do  all  that  in  you  lyes  "  to 
secure  the  enactment  of  a  law  prohibiting  the  export  of 
bulk  tobacco,  while  the  governor  of  South  Carolina  was 
directed  to  urge  upon  the  assembly  the  necessity  of  pro- 

*  B.  T.  /.,  vol.  xlvii,  p.  24.  Instructions  were  suggested  either  at  the 
Board,  or  in  the  Council  or  its  committee.  In  any  case  a  draft  of  the 
instruction  proposed  was  prepared  by  the  Board,  approved  by  the  com- 
mittee (or  prior  to  about  1720  by  the  Council)  and  issued  by  an  order 
in  council. 

«B.  T.  J.,  vol.  iv,  p.  213;  6  October  1683.  CO/5-403,  P-  76.  CO/5- 
1073,  p.  17. 


^09]  PROCEDURE  IN  REVIEW  91 

viding  a  jail  and  of  keeping  the  same  in  repair/  Instead 
of  allowing  an  objectionable  act  to  lie  by  and  instructing 
the  governor  to  obtain  its  repeal  or  amendment,  the  Board 
sometimes  secured  the  same  result  in  a  more  emphatic  and 
effective  fashion  by  disallowing  the  law  and  stating  specifi- 
cally in  an  instruction  the  modifications  which  would  serve 
to  make  it  acceptable  to  the  government.  Thus  it  w^as, 
stated  that  if  in  the  act  disallowed  for  "  Securing  the  Ad- 
ministration of  Pennsylvania  "  a  clause  be  inserted  that  on 
the  death  of  the  Lieut.  Governor,  the  Proprietors  do  name 
another  and  obtain  her  Majesty's  approbation  within  six 
months,  then  the  act  will  be  confirmed."  *  In  the  case  of 
a  Jamaica  act  which  had  been  disallowed  because,  contrary 
to  the  governor's  instructions,  it  enlarged  the  number  of  the 
assembly  and  contained  no  suspending  clause,  permission 
was  given  to  pass  "  a  new  law  corresponding  in  all  respects 
to  that  repealed."  * 

In  several  instances  the  Board,  disapproving  an  act  sub- 
mitted, drafted  a  measure  more  to  their  liking  and  sent  it 
to  the  colony  for  enactment.  But  it  was  not  insisted  that 
these  drafts  be  accepted  unaltered.  Rather  were  they  sent 
to  show  what  the  Board  conceived  "  his  Majesty  might  not 
be  unwilling  to  approve  of  in  case  the  General  Assembly 
think  fit  to  enact  it  accordingly."  *  In  the  most  conspic- 
uous instance  of  this  kind  a  Maryland  act  "  For  the  Ser- 
vice of  God  and  the  Establishment  of  a  Religion  "  was  re- 
placed  by   a   new   bill,    containing   "proper   alterations" 

*  CO/S'72/^,  p.  47;  12  October  1691.    B.  T.  /.,  vol.  xlv,  p.  90. 

^0^*A.  P.  C,  vol.  ii,  p.  615;  24  October  1709.  Similar  action  was  taken 
regarding  an  act  of  North  Carolina,  A.  P.  C,  vol.  v,  p.  341.  CO/s-305, 
p.  155 ;  12  May  1772- 

*A.  P.  C,  vol.  V,  p.  351 ;  5  March  1773. 

*B.  T.  I.,  vol.  ix,  p.  351. 


92  REVIEW  OF  COLONIAL  LEGISLATION  [510 

agreeable  to  the  toleration  allowed  in  England,  together 
with  a  clause  for  repealing  the  act  then  in  force/ 

When  the  enactment  of  a  law  was  forbidden  unless  it 
contained  a  suspending  clause,  or  unless  his  Majesty's  as- 
sent had  been  previously  obtained,  the  governor  or  the 
assembly  sometimes  chose  the  latter  alternative  and  sub- 
mitted the  tentative  draft  of  a  desired  law  to  the  Privy 
^^^ A  Council.  In  this  manner,  for  example,  Governor  Bernard 
secured  permission  to  approve  an  act  which  established  a 
lottery  for  the  benefit  of  Harvard  College.^  Though  such 
bills  were  approved,  amendments  were  sometimes  suggested 
by  the  Board. /  In  1704  they  considered  the  draft  for  a  re- 
vision of  the  laws  of  Virginia  prepared  by  the  governor 
and  a  committee  of  the  council,  and  suggested  many 
^ Axhanges  to  be  made  before  its  final  enactment.^  And  per- 
mission was  accorded  New  Jersey  to  issue  certain  bills  of 
credit  providing  a  clause  regarding  the  disposal  of  interest. 


1^^ 


^  A.  P.  C,  vol.  ii,  p.  362;  13  February  1701.  CO/5-726,  p.  170.  Some 
English  Quakers  objected,  esteeming  themselves  "under  hard  usage 
that  a  Law  contrary  to  their  fundamental  settlement  and  the  ancient 
Law  of  that  Province  should  be  prepared  here  and  sent  over  there.'^ 
They  complained  that  it  was  not  customary  for  the  King  to  prepare 
money  Bills  and  give  directions  to  have  them  passed  into  acts. 
C.  S.  P.,  1701,  p.  211.  The  Massachusetts  council  refused  assent  to  the 
draft  of  a  law  regarding  "  Pirates  and  Privateers "  because  it  en- 
larged the  jurisdiction  of  the  admiralty.  Acts  and  Resolves,  vol.  i, 
P-  263;  3  June  1699.  In  1735  an  act  was  drafted  by  the  attorney  and 
solicitor  to  replace  a  South  Carolina  quit-rent  law.  But  the  agent  and 
the  governor  so  strongly  defended  the  act  in  force  that  the  matter 
appears  to  have  been  dropped.  B.  T.  /.,  vol.  xliii,  pp.  149,  162,  163; 
vol.  xliv,  pp.  229,  232,  233,  240.    CO/5-364,  E,  44- 

'CO/5-920,  p.  148;  24  December  1762.    B.  T.  J.,  vol.  Ixix,  p.  317. 

'B.  T.  I.,  vol.  ix,  pp.  12,  13,  14;  April  1704.  CO/5-1361,  p.  4-  The 
Board  informed  the  attorney  and  solicitor  that  these  bills  might  "be 
altered  in  any  part  thereof  as  Bills  transmitted  from  Ireland."  CO/5- 
1360,  p.  469. 


5 1 1  ]  PROCEDURE  IN  REVIEW  93 

to  be  prepared  in  England,  should  be  inserted  verbatim  in 
the  act  for  emission/ 

From  time  to  time  the  colonies  were  urged  to  gather  and     ^ 
to  transmit  a  complete  collection  of  their  laws  in  force,  for      \ 
convenience  in  reviewing  new  acts  and  in  judging  colonial      \ 
appeals.     With  this  request  all  the  colonies,  royal,  charter 
and  proprietary,  at  rather  long  intervals  complied.^     The 
order,  long  a  standing  instruction  to  the  governors  that     / 
they  cooperate  with  the  councils  in  revising  the  laws  and  in    \ 
sending  home  a  complete  body  with  an  opinion  upon  each,     ■' 
met  with  less  response.     It  was  expected  that  the  revisions  / 
would  be  examined  and  approved  by  the  Privy  Council, 
and  then  returned  to  the  colonies  for  re-enactment — a  pro- 
cedure of  which  the  lower  houses,  from  whence  must  come 
the  necessary  appropriations,  strongly  disapproved. 

Complaints  from  the  Board  regarding  the  confused  state 
of  the  Maryland  laws,  led  to  a  general  revision  by  the 
assembly,  in  1699,  and  the  passing  of  a  blanket  act  "Ascer- 
taining the  Laws."  But  this  was  disallowed,  because  the 
Board  had  contemplated  a  revision  by  the  governor  and 
council  only,  and  because  the  inclusion  of  so  many  acts 
under  one  title  constituted  a  violation  of  the  governor's 
instructions.' 

Because  of  opposition  or  indifference  upon  the  part  of 
the  burgesses,  and  of  procrastination  upon  the  part  of  the 

^A.  P.  C,  vol.  iv,  p.  228;  1755.  The  Board  insisted  that  the  submission 
of  drafts  in  this  manner  be  approved  by  the  governor,  although  it  did 
not  require  that  he  approve  of  the  subject  matter.  B.  T.  J.,  vol.  xxxvi, 
p.  230;  1727. 
L^A.  P.  C,  vol.  iv,  p.  153.  Collections  of  the  acts  of  New  York  were 
made  in  1699,  171 1,  1740,  of  Massachusetts  in  1713,  of  New  Hampshire 
in  1702,  1741,  1761  and  1768,  and  of  Virginia  in  1700,  1741  and  1761. 
New  York,  New  Hampshire,  South  Carolina  and  Virginia  complied  in 
1740-1;  South  Carolina,  New  Hampshire,  Virginia  and  Pennsylvania 
in  1 761. 
*  Board  to  Blackiston,  CO/5-725,  p.  468;  4  January  1700. 


94  REVIEW  OF  COLONIAL  LEGISLATION  [512 

/members  of  a  joint  committee  of  the  council  and  the  house, 
chosen  by  the  governor  to  perform  the  task,  a  revision  of 
the  Virginia  laws  commenced  in  1698  consumed  several 
years.  ^  In  January,  1704,  Secretary  Jennings  of  Virginia 
attended  the  Board  of  Trade  with  two  books,  the  large  one 
containing  "  a  complete  collection  of  all  laws  in  force." 
The  lesser  contained  copies  of  bills  prepared  by  the  com- 
mittee of  revision,  and  comprehended  all  that  was  material 
in  the  other  book.  When  once  the  latter  were  "  enacted 
and  confirmed,"  then  the  other  was  to  "determine  and  be- 
come voyd."  After  the  Board  had  proposed  sundry  altera- 
I  tions,  the  bills  were  returned  to  the  colony,  where  fifty- 
I  eight  laws  were  enacted  in  October,  1705.*  In  1713  Gov- 
ernor Spotswood  wrote  the  Board  that,  notwithstanding  the 
great  length  of  time  spent  in  securing  the  late  revision,  and 
its  cost  of  upwards  fifteen  hundred  pounds,  the  work  was 
still  imperfect  and  unsatisfactory.*  He  accordingly  in- 
trusted the  task  of  making  a  further  revision  to  the  secre- 
tary, attorney  general,  judge  of  the  admiralty  and  clerk  of 

*^*The  "Account  of  the  present  State  and  Government  of  Virginia" 
signed  by  Hartwell,  Blair  and  Chilton,  sets  forth  the  need  of  a  revision 
there.  "There  being  great  scarcity  of  able  Lawyers  and  wise  Poli- 
ticians in  that  country — very  few  of  the  Laws  have  been  as  well  drawn 
and  framed  in  the  Beginning,  but  that  Experience  has  discovered  many 
errors  and  Imperfections,  which  they  have  endeavored  to  patch  up  and 
mend  with  subsequent  laws,  and  sometimes  by  repealing  the  old  law 
and  making  a  new  one.  [So]  the  body  of  their  Laws  is  become  not 
only  long,  and  confused:  But  it  is  a  very  hard  matter  to  know  what 
laws  are  in  force,  and  what  not.  *  *  "  CO/S-1359,  P-  130;  20  October 
1697. 

^-*5.  T.  /.,  vol.  viii,  pp.  356,  357;  "  January  1704.  Five  of  these  acts 
were  afterwards  disallowed  in  England  because  of  "  many  disagreeable 
clauses  foisted  in  both  by  the  Committee  and  the  Assembly  that  passed 
the  late  revised  laws."  Spotswood  to  the  Board,  CO/5-1363,  p.  Soo; 
II  February  1713. 

•CO/S-1363,  pp.  500-502;  II  February  1713. 


513]  PROCEDURE  IN  REVIEW  95 

the  council,  who  as  remuneration  sought,  apparently  with- 
out success,  a  royal  grant  of  the  sole  privilege  of  printing  it^ 

In  1746-8  the  laws  of  Virginia  were  revised  once  more 
by  a  joint  committee  of  the  two  houses,^  and  a  "  body  "  of 
eighty-nine  acts  were  approved  by  the  assembly  and  dis- 
patched to  England.  In  October,  1751,  the  Privy  Council 
confirmed  fifty-seven  of  these  acts,  and  disallowed  ten.  The 
Council  also  approved  a  committee  report  representing  the 
action  of  Virginia,  "  as  a  method  worthy  of  imitation  and 
which  we  could  wish  to  see  followed  in  all  Your  Majesty's 
Colonies  in  America,  since  nothing  can  more  effectually 
tend  to  promote  Order  and  good  Government,  secure  the 
Properties  and  Possessions  of  your  Majesty's  subjects,  and 
prevent  litigious  Controversies  and  Disputes  than  a  clear 
and  well  digested  body  of  Laws."  Accordingly  the  gover- 
nors were  instructed,  "  jointly  with  the  Council  and  As- 
sembly, ...  to  consider  and  revise  all  laws,  .  .  .  except- 
ing only  such  as  relate  to  private  property,  .  .  .  and  in  lieu 
thereof  to  frame  and  pass  a  complete  and  well  digested  body 
of  new  laws,  .  .  .  taking  care  that  no  law  be  passed  with- 
out a  clause  suspending  its  execution.^ 

The  instruction,  however,  proved  ineffectual,  for  the 
assemblies  had  no  mind  to  risk  the  disallowance  of  laws 

*  Spotswood  to  the  Board,  CO/5-1364,  p.  403;  31  July  1716.  This  re- 
vision differed  from  the  former  in  that  the  laws  therein  were  fully 
enacted  by  the  assembly  before  being  dispatched  to  England.  CO/S- 
1318,  P,  144;  25  October  1717. 

'  A  "  joint  committee  of  some  of  the  principal  members  best  acquainted 
with  the  business  and  living  nearest  the  capital,  to  perform  the  work 
in  vacation  times,  all  bills  from  them  are  to  be  reported  to  the  As- 
sembly where  they  are  to  be  formally  ratified  and  passed.  Nor  is  any 
law  to  be  abrogated  or  altered  but  by  act  of  the  Assembly."  CO/5- 
1326,  V,  90;  Gooch  to  the  Board,  4  July  1746. 

^A.  P.  C,  vol.  iv,  p.  132;  31  October  1751.  B.  T,  /.,  vol.  lix,  un- 
paged; 14  February  1752.    N.  Y,  Col.  Docs.,  vol.  vi,  p.  755. 


96  REVIEW  OF  COLONIAL  LEGISLATION  [514 

already  confirmed  and  established,  and  were  loath  to  resort 
to  such  an  extensive  use  of  the  suspending  clause.  The 
laws  of  Massachusetts,  by  reason  of  the  many  temporary 
acts  annually  renewed  and  others  many  times  amended, 
were  particularly  in  need  of  revision.  The  assembly  there 
having  rejected  such  a  proposal,  Governor  Shirley  was  in- 
structed to  lay  the  matter  "  in  the  strongest  manner  "  be- 
fore them.^  With  difficulty  he  succeeded  in  securing  the 
appointment  of  a  joint  committee  empowered  merely  to 
suggest  amendments  "  necessary  in  any  particular  Laws."  ^ 
Nothing  further  was  done,  and  shortly  after  the  instruction 
was  omitted  from  those  issued  to  all  the  governors.  Later 
developments  had  revealed  considerable  inconvenience  re- 
sulting from  the  Virginia  revision,  at  first  so  cordially  ap- 
proved. The  house  of  burgesses  issued  formal  protests 
both  against  the  confirmation  and  the  disallowance  of  so 
many  acts;  against  the  former  because  it  deprived  them  of 
the  pMDwer  to  make  necessary  amendments,  and  against  the 
latter  because  of  the  importance  and  popularity  of  the  laws 
annulled.  The  Board,  upon  the  other  hand,  in  recommend- 
ing that  the  instruction  be  discontinued,  complained  that 
the  legislature  in  framing  the  new  laws  had  "  availed  itself 
of  the  opportunity,  either  totally  to  set  aside  or  to  alter  in 
part  several  of  the  former  laws,  which  had  been  confirmed 
by  the  Crown."  Moreover,  an  act  regarding  "  Executions 
for  the  Relief  of  Debtors,"  against  which  the  merchants 
bitterly  complained,  was   found  to  have  been  confirmed, 

1  A.  P.  C,  vol.  iv,  p.  207;  19  April  1753.  B.  T.  J.,  vol.  Ix,  unpaged; 
I  May  1753- 

'  CO/5-887,  Hh,  19;  20  April  I7S4.  Shirley  admitted  that  if  the  new 
laws  were  acted  on  two  or  three  years  and  then  disallowed  incon- 
veniences would  arise.  But  this,  he  said,  was  guarded  against  by 
the  provision  that  each  act  contain  a  suspending  clause!  He  referred 
to  the  instruction  as  a  "  Remarkable  instance  of  His  Majesty's  paternal 
care  over  his  subjects."    CO/5-887,  Hh,  12. 


515]  PROCEDURE  IN  REVIEW  97 

among  others,  and  so  placed  beyond  the  possibility  of  dis- 
allowance/   

None  of  the  proprietary  colonies  save  Pennsylvania  regu- 
larly submitted  its  legislation  to  the  Privy  Council  for  re- 
view. Upon  several  occasions,  however,  the  Council  dis- 
allowed, either  directly  or  through  the  proprietors,  acts  of 
Carolina  against  which  complaints  had  been  received.  It 
also  dictated  to  the  proprietors  the  purport  of  instructions 
forbidding  the  governors  to  enforce  objectionable  laws  or 
to  permit  the  enactment  of  similar  ones  in  the  future.  This 
was  done  upon  the  ground  that  the  acts  annulled  or  for- 
bidden were  repugnant  to  the  laws  of  England,  and  there- 
fore constituted  a  violation  of  the  proprietary  charter. 
Thus,  in  1706,  the  Council  declared  two  acts  for  the  "  Es- 
tablishment of  Religious  Worship "  "  not  consonant  to 
reason  and  repugnant  to  the  laws  of  England,  and  there- 
fore not  warranted  by  the  Charters,"  and  accordingly  issued 
an  order  directing  the  proprietors  to  declare  them  null  and 
void.^  In  1709  the  proprietors  were  ordered  to  forbid  the 
enforcement  of  an  act  levying  a  duty  upon  skins  taken 
across  Carolina  by  Indian  traders  of  Virginia.*  J  In  1718" 
the  Council  went  a  step  further  and  itself  declared  a  law, 
which  had  not  yet  been  transmitted  to  the  proprietors,  to 
be  "  null  and  void,"  and  directed  that  the  governor  be 
ordered  not  to  pass  any  such  act  in  the  future.*     Laws 

*  Representation  upon  draft  of  instructions  to  Bernard,  CO/5-920, 
pp.  46-52 ;  24  April  1761.    B.  T.  /.,  vol.  Iviii,  unpaged ;  26  November  1751. 

*  These  acts  came  before  the  Board  of  Trade  in  connection  with  an 
address  from  the  House  of  Lords  upon  complaints  made  by  the  settlers 
of  Carolina  against  the  proprietors.  A.  P.  C,  vol.  ii,  p.  506;  10  June 
1706. 

M.  P.  C,  vol.  ii,  p.  610;  26  September  1709.    CO/5-1316,  O,  40. 

*  An  act  additional  to  an  "  Impost  upon  liquors,  goods  etc."  passed 
in  1717  and  disallowed  May  14,  1718.  CO/5-1265,  Q,  154.  The  agita- 
tion which  resulted  in  the  overthrow  of  the  proprietary  government 
had  already  begun. 


98  REVIEW  OF  COLONIAL  LEGISLATION  [516 

passed  by  the  proprietary  governments  of  New  Jersey  and 
Maryland  appear  to  have  met  with  no  objections  from  the 
English  government.  The  same  was  true  of  the  North 
Carolina  laws  during  the  proprietary  regime.  After  the 
Carolinas  had  become  royal  provinces,  however,  many  of 
the  proprietary  acts  remaining  in  force  were  disallowed.^ 
When,  as  was  the  case  in  Maryland,  Carolina  and  New  Jer- 
sey, the  proprietors  after  relinquishing  their  rights  of  gov- 
ernment retained  property  interests  in  the  colony,  they  often 
continued  to  exert  considerable  influence  upon  the  fate  of 
legislation  at  the  Board  of  Trade.  The  proprietors  of 
South  Carolina  were  consulted  in  regard  to  an  act  for  the 
sale  of  the  governor's  mansion,  and  several  acts  of  Mary- 
land were  disallowed  at  the  instigation  of  Lord  Baltimore, 
because  they  were  prejudicial  to  his  revenue  or  property.^ 
The  Georgia  charter  of  1732  granted  to  a  corporation 
for  twenty-one  years  a  power  to  make  laws  not  repugnant 
to  those  of  England.  Acts  were  to  be  submitted  to  the 
Privy  Council  and  to  be  in  force  only  after  receiving  its 
approval.^  Accordingly  the  trustees  from  time  to  time  sub- 
mitted proposed  enactments,  together  with  petitions  or 
statements  setting  forth  their  reasons  for  desiring  confir- 
mation. The  trustees  not  infrequently  were  represented  at 
the  Board  by  their  secretary,  or  by  some  of  their  members, 
and  upon  several  occasions  by  counsel  and  solicitor.     In 

'Among  the  acts  of  North  Carolina  annulled  by  the  Privy  Council 
were:  "For  Biennial  Assemblies/'  "Attornies  from  Foreign  Parts," 
"Disposal  of  Goods  on  Execution,"  "Disputes  regarding  Lands," 
"  Regulating  Abuses  regarding  Lands,"  "  Escheats  and  Escheators,"  and 
"The  Public  Treasurer  to  Give  Account,"  all  of  which  were  passed 
in  1715.  An  act  to  "Encourage  the  Settlement  of  South  Carolina," 
passed  in  December  1696,  was  disallowed  April  3,  1734. 

^B.  T.  /.,  vol.  xxxiii,  p.  68;  March  1724.  A.  P.  C,  vol.  ii,  p.  235- 
B.  T.  /.,  vol.  XV,  p.  402;  I  February  1703.  B.  T.  /.,  vol.  xx,  pp.  302, 
313,  314;  November  1708. 

•Maodonald,  Select  Charters,  pp.  241-243;  June  1732. 


517]  PROCEDURE  IN  REVIEW  gg 

1750  they  conceded  to  the  freemen  of  the  colony  an  assem- 
bly "with  power  to  consider  and  propose  .  .  .  what  laws 
they  might  think  beneficial  to  the  welfare  of  the  Province." 
At  its  first  meeting  this  body  requested  the  privilege  of 
making  "  Bye  Laws,  to  be  in  force  till  the  Trustees  should 
disapprove  thereof  "  —  a  power  which  "  had  been  found 
necessary  elsewhere."  ^  But  the  trustees  thought  it  too 
early  to  grant  the  favor,  and  the  first  acts  of  a  Georgia 
assembly  did  not  reach  the  Board  until  1755,  after  the 
colony  had  became  a  royal  province. 

For  a  time  Penn,  like  the  other  proprietors,  exercised  k 
veto  upon  acts  approved  by  his  governor.^     But  in  1705 
Attorney  General  Northey,  in  answer  to  queries  from  the  \ 
Board,  gave  an  opinion  that  under  the  terms  of  the  Pertn-  \ 
sylvania  charter  Penn  or  his  deputy  could  accept  or  reject  \ 
laws  where  the  assembly  sat,  and  not  elsewhere;  and  that  \ 
Penn's  instructions  to  the  governor,  saving  to  himself  and   j 
heirs  a  final  assent,  were  void  and  of  no  avail.®    Thence-  | 
forth  the  proprietors  possessed  no  check  upon  legislation  | 
save  by  instructions  to  the  governors  or  by  appeals  to  the/ 
crown.     Because  of  the  constant  encroachments  and  in- 
creasing prestige  of  the  assembly,  the  former  tended  to  be- 
come less  effective,  while  recourse  to  the  latter  became  more 
frequent.*    In  1760,  after  the  house  had  offered  to  indem- 

*  CO/5-671,  pp.  221-224;  19  June  1752. 

*  In  December  1699  Penn  vetoed  an  act  for  "  Preventing  Frauds  and 
Regulating  Abuses  in  Trade,"  "in  consequence  of  one  disagreeable 
clause."  C.  S.  P.,  1697-8,  p.  578.  The  Privy  Council,  nevertheless, 
proceeded  to  disallow  the  act  because  "his  simple  disallowance"  was 
not  "sufficient  for  the  discountancing  of  such  like  attempts  for  the 
future."    CO/5-1288,  p.  20. 

'Report,  CO/5-1263,  N,  48;  19  October  1705. 

*  Petition  in  behalf  of  the  widow  of  Penn,  for  the  disallowance  of  an. 
act  whereby  fines  and  forfeitures  were  taken  from  the  proprietors. 
A.  P.  C,  vol.  ii,  p.  771 ;  8  January  1720.  A  memorial  desiring  the  repeal 
of  three  acts.    B.  T.  /.,  vol.  xxxv,  p.  134;  26  April  1726. 


lOO  REVIEW  OF  COLONIAL  LEGISLATION  [518 

nify  the  governor  in  case  the  proprietors  sued  to  recover 
security  upon  his  bond,  the  proprietors  petitioned  for  the 
disallowance  of  eleven  acts  which  they  considered  highly 
injurious  to  their  political  and  landed  interests.  As  a  re- 
sult, the  Board  recommended  the  annulment  of  several  laws, 
and  administered  a  severe  rebuke  to  the  proprietors  for 
waiting  until  their  property  was  endangered  before  pro- 
testing against  encroachments  upon  the  prerogative  of  the 
crown/ 

/Until  disabled  by  ill  health  in  1712,  Penn  took  charge  of 
/the  Pennsylvania  acts  in  England,  seeing  to  it  that  they 
*,  were  duly  presented  to  the  Council  and  the  Board,  and  re- 
;  ported  upon  by  the  law  officers,  and  that  they  were  consid- 
/  ered  in  as  favorable  a  light  as  possible.     In  short,  he  per- 
yf    formed  all  the  duties  of  an  agent,  and  because  of  his  dis- 
■    interestedness,  prestige  and  wide  acquaintance  among  offi- 
cials he  was  far  more  influential  than  an  agent  designated 
/  by  the  colony  could  have  been.     Penn's  successors  some- 
/   times  addressed  the  Board  in  writing  regarding  the  confir- 
I   mation  or  disallowance  of  acts.    But  their  interests  were  in 
1  the  hands  of  solicitors,  and  they  seem  to  have  exercised 
Vittle  personal  influence  there. 

i'    The  charters  of  Massachusetts  and  Pennsylvania  con- 
tained provisions  regarding  the  submission  and  confirmation 
of  laws  which  caused  some  variation  in  the  procedure  of 
their  review,  and  proved  a  considerable  limitation  upon  the 
veto  power  of  the  crown.     Massachusetts  was  not  obliged 
to  submit  laws  to  the  Privy  Council  until  one  year,  and 
/  Pennsylvania  until  five  years  after  their  enactment.     Acts 
/  of  the  former,  if  not  disallowed,  were  confirmed  by  lapse 
I   of  time  three  years  after  presentation,  and  those  of  the 
\  latter  six  months  after  presentation.    Thus  the  government 

*  Representation,    €0/5-1295,   pp.   295-385;    21    March    1760.     Root, 
Relations  of  Penn  with  the  British  Government. 


519]  PROCEDURE  IN  REVIEW  lOi 

/was  forced  to  a  decision  upon  their  laws  within  a  compara- 
^  /  fively  short  time,  and  was  prevented  from  allowing  them  to 
\    lie  by  until  the  full  effect  of  their  operation  could  be  ob- 
\served.    In  1735  the  Board  resolved  that  all  Massachusetts 
acts  should  remain  "two  years  (from  the  time  of  their 
being  presented  to  the  Crown)   Probationary  (unless  ob- 
jected to  in  the  meantime)  and  then  to  report  upon  them."  ^ 
This  was  the  longest  possible  period  in  view  of  delays  in- 
cident to  their  proper  consideration,   and  the  three-year 

limitation.  

In  reply  to  queries  from  the  Board,  the  law  officers  ruled 
that  the  limitation  upon  the  time  allowed  for  review  did 
not  begin  until  laws  were  presented  to  the  Privy  Coimcil.^ 
'onsequently  acts  delivered  by  the  colony  to  the  Board  of 
Trade  could  be  considered  there  without  regard  to  the  time- 
limit.  In  order  to  avoid  the  consequences  of  this  decision, 
the  agents  of  Massachusetts  and  Pennsylvania  delivered 
laws,  as  a  rule,  to  the  clerk  of  the  Privy  Council,  and  the 
Council,  in  turn,  referred  them  to  the  Board  of  Trade.  In 
1746  the  Board  proposed  that  two  objectionable  acts  of 
Pennsylvania  passed  in  1722  and  1729  respectively  should 
be  disallowed,  upon  the  ground  that  they  had  been  delivered 

*  B.  T.  /.,  vol.  xliv,  p.  151 ;  10  July,  1735.  Acts  and  Resolves,  vol.  ii,  p. 
790,  note. 

^  Opinion  of  the  king's  counsel  regarding  the  laws  of  Pennsylvania  in 
1719 :  ".  .  .  the  six  months  during  which  Pennsylvania  laws  are  repeal- 
able  are  to  be  counted  from  the  time  of  their  being  delivered  to  the 
Privy  Council,  unless  agents  of  the  Province  deliver  duplicates  to  the 
Privy  Council  at  the  same  time  they  are  delivered  to  your  Lordships. 
The  time  during  which  they  remain  with  your  Lordships  Can  make  no 
part  of  the  six  months,  but  from  the  time  delivered  to  the  Privy  Council 
subsequent  to  your  Lordship's  report."  B.  T.  /.,  vol.  xxviii,  pp.  167, 
185 ;  CO/S-1265,  O,  171 ;  24  March  1719.  Chalmers,  Opinions,  pp.  336^  337- 
In  1722  the  attorney  and  solicitor  rendered~~an  opinion  to  the  same 
effect  in  regard  to  the  laws  of  Massachusetts.  B.  T.  J.,  vol.  xxxi, 
pp.  113,  116.    CO/s-915,  pp.  341,  342.    Chalmers,  Opinions,  pp.  337,  338. 


I02  REVIEW  OF  COLONIAL  LEGISLATION  [^20 

to  the  Board  of  Trade  in  the  first  instance,  and  had  never 
been  laid  before  the  Council.  But  the  proprietors  protested 
against  the  establishment  of  such  a  precedent,  and  upon 
their  promise  that  the  acts  would  be  repealed  by  the  assem- 
bly, no  further  action  was  taken/ 

The  needlessly  long  period  allowed  Pennsylvania  for  the 
submission  of  her  acts,  together  with  the  short  time  allotted 
for  their  consideration,  placed  the  government  at  a  serious 
disadvantage,  and  afforded  the  assembly  and  proprietors 
considerable  opportunity  for  neglect  and  evasion.  Inertia, 
and  probably  in  some  cases  deliberate  intent,  caused  the 
proprietors  to  delay  transmission,  and  then  to  submit  the 
accumulated  enactments  of  four  or  five  years.  But  if  the 
Privy  Council  and  its  subordinate  officials  moved  at  their 
usual  leisurely  rate  of  procedure,  six  months  was  hardly 
an  adequate  time  for  the  consideration  of  so  many  laws. 
In  1739  the  Board  made  a  strong  protest  to  the  proprietors 
against  this  and  other  abuses,  and  the  submission  of  Penn- 
sylvania laws  was  accomplished  with  greater  promptness 
and  regularity  thereafter.* 

The  charters  of  Connecticut  and^^^^^^^        Island,  like  that 

M.  P.  C,  vol.  iv,  p.  21.  Pa.  Sts.,  vol.  iii,  p.  511.  Root,  Relations 
of  Pa.  with  the  British  Government,  p.  135. 

'Representation,  CO/5-1294,  pp.  116-118;  2  February  1739.  In  strict 
conformity  with  the  original  charter  Pennsylvania  laws  should  have 
been  disallowed  under  the  Privy  Seal.  But  as  the  result  of  an  error 
in  copying  the  charter  they  were  annulled,  as  were  those  of  other 
colonies,  by  orders  in  council.  When  the  fact  was  brought  to  light  in 
connection  with  a  judicial  hearing  upon  the  appeal  of  Hamilton  v. 
Richardson  in  1733  the  assembly,  fearing  action  by  Parliament,  passed 
a  law  which  was  intended  to  correct  any  informality  or  illegality  in 
the  previous  repeal  of  acts  by  orders  in  council.  In  spite  of  a  report 
from  the  king's  counsel  in  connection  with  this  act  that  "by  the  ex- 
press terms  of  the  Charter  [Pennsylvania  acts]  must  be  declared  void 
under  Privy  Seal" — the  use  of  orders  in  council  continued  as  before. 
CO/5-1268,  S,  46;  13  January  1734.  Root,  Relations  of  Pa.  with  the 
British  Government,  pp.  134,  135. 


521]  PROCEDURE  IN  REVIEW  103 

of  Maryland,  did  not  require  the  submission  of  laws  to  the 
crown.     But  to  the  recurrent  insistence  of  the  government 
that  they  send  home  complete  copies  of  their  acts,  both 
colonies  yielded  a  somewhat  reluctant  and  dilatory  compli- 
ance.^    Apparently  the  Board  of  Trade  never  made  any. 
'vS^''  careful   examination  of  these  laws.     Upon   several 
occasions  collections  of  Connecticut  acts  were  sent  to  the    \ 
king's  counsel  with  the  request  for  an  opinion,  "  whether    ; 
some  of  them  are  not  repugnant  to  the  laws  of  this  King-   ; 
dom."    But  his  reports,  made  at  considerable  length,  were  ( 
not  read  at  the  Board.  ^     They  show  that  many  acts  were  j 
"  repugnant "  if  measured  by  the  standard  of  conformity  \ 
applied  to  those  of  the  royal  colonies.     Yet  in  only  three  / 
instances  were  acts  of  Connecticut  or  Rhode  Island  dis-  j 
allowed  by  virtue  of  the  charter  requirement  that  legisla-  I 
tion  be  "  not  contrary,  but  as  near  as  may  be  agreeable  to  \ 
the  laws  of  England."     A  Rhode  Island  law  which  estab-  \ 
lished  a  court  of  admiralty  was  annulled  upon  the  opinion  \ 
of  the  attorney  general  that  the  charter  conferred  power  to  ] 
erect  courts  only   for  trying  matters  arising  within  the   | 
colony.^     Upon  complaint  of  the  Quakers,  a  Connecticut   | 
law  against  "  Heriticks  "  was  adjudged  "  contrary  to  the  | 
Liberty  of  Conscience  indulged  to  Dissenters  by  the  law  of  ' 

L*^ Collections  of  Connecticut  laws  were  transmitted  in  1699,  1706,  1710, 
1732,  1740  and  1752;  of  Rhode  Island  in  1699,  1700,  1710.  Other  col- 
lections were  perhaps  sent,  of  whose  receipt  the  journal  makes  no 
mention. 

^B.  T.  I.,  vol.  xli,  p.  104.  CO/5-1271,  V,  16;  Fane  on  133  acts  of 
Connecticut,  10  August  1733. 

'The  Board  was  in  search  of  a  pretext  for  annulling  the  Rhode 
Island  charter,  and  inquired  whether  putting  the  act  in  force  would 
not  be  a  good  cause  for  forfeiting  it.  The  attorney  replied  that  the 
law  was  void,  but  that  such  action  would  not  be  warranted  because  the 
act  was  only  provisional  until  his  majesty's  pleasure  could  be  further 
known.  CO/5-1262,  M,  3.  CO/5-1290,  pp.  403,  413-  A.  P.  C,  vol. 
ii,  p.  852;  28  January  1704. 


/  \ 


/ 


104  REVIEW  OF  COLONIAL  LEGISLATION  [522 

/England,  as  likewise  to  the  Charter"  of  that  Colony.^ 
And,  finally,  a  Connecticut  act  of  1699  ^^^  the  settlement 
of  intestate  estates  was  declared  void  in  connection  with  an 
appellate  decision  in  the  famous  case  of  Winthrop  vs.  Lech- 
mere.  That  the  government  wa§  alive  to  the  desirability 
of  subjecting  the  legislation  of  these  colonies  to  review  by 
the  Privy  Council  is  evident  from  the  various  attempts 
made  to  annul  the  charters,  and  from  resolutions  offered  in 
the  house  of  Lords,  that  the  acts  of  all  colonies  should  be 
>  sent  home  within  a  year  after  passage,  and  that  no  law 
\^should  be  in  force  till  approved  by  the  crown.^ 

In  a  few  instances  the  exercise  of  appellate  jurisdiction 
in  cases  from  colonial  courts  involved  a  decision  by  the 
Privy  Council  upon  the  validity  of  legislation.  As  a  rule, 
the  act  involved,  together  with  petitions  praying  relief  from 
its  operation,  were  referred  by  the  committee  for  appeals 
to  the  Board  of  Trade,  and  in  accordance  with  their  recom- 
mendation the  law  was  upheld  or  condemned.  Thus  an 
appeal  of  Col.  Bayard  from  a  conviction  of  treason  under 
a  New  York  act  for  "Quieting  and  Settling  Disorders," 
\  was  referred  to  the  Board,  together  with  papers  from  the 
governor  and  council,  copies  of  the  act  and  the  warrant  for 
commitment.  After  considering  the  Board's  report,  the 
committee  recommended  that  the  governor  be  instructed  to 
secure  the  repeal  of  the  clause  under  which  the  appellant 
had  been  convicted  and  that  sentence  be  reversed.^  The 
most  notable  instance  of  an  appeal  to  the  king  in  Council 

1  CO/5-1291,  p.  210.  CO/5-1263,  N,  54.  A.  P.  C,  vol.  ii,  p.  832; 
II  October  1705. 

'  CO/5-1291,  p.  238;  23  January  1706.  B.  T.  I.,  vol.  xxiv,  p.  411 ;  April 
1734.    Root,  op.  cit.,  p.  145. 

M.  P.  C,  vol.  ii,  p.  413;  2  July  I7®2.  B.  T.  J.,  vol.  xiv,  pp.  413,  428, 
429,  430,  435,  453.  C.  S.  P.,  1702,  p.  255,  267.  "  *  the  meaning  of  which 
clause  having  been  Misinterpreted  to  the  Oppression  of  His  Majesty's 
subjects." 


523]  PROCEDURE  IN  REVIEW  105 

involving  the  validity  of  a  colonial  law  was  the  Connecticut  \ 
case  of  Winthrop  vs.  Lechmere.     The  respondent  relied     \ 
upon  a  law  of   1699  under  the  terms  of  which  the  real 
estate  of  an  intestate  was  to  be  divided  equally  among  the 
children,  except  that  a  double  portion  was  to  be  allotted  the 
eldest  son.     The  appellant  contended  that  this  act  was  in- 
valid because  repugnant  to  the  English  common  law,  which 
made  the  eldest  son  sole  heir.     By  an  order  in  council  of 
February  15,  1728,  the  Connecticut  law  was  declared  in- 
valid and  the  appellant  given  the  whole  estate/     This  is 
probably  the  only  case  in  which  a  colonial  law  was  de-; 
clared  invalid  without  a  reference  to  the  Board  of  Trade.*- 
Had  Lechmere's  counsel  or  the  agent  for  Connecticut  peti-l. 
tioned  to  be  heard  in  defense  of  the  act,  the  matter,  no- 
doubt,  would  have  been  referred  to  the  Board  and  there 
considered  upon  other  than  strictly  legal  grounds.    That  no 
action  was  taken  by  the  agent  was  perhaps  due  to  the  con- 
sistent reluctance  of  Connecticut  to  acquiesce  in  the  review 
of  her  laws  by  the  home  government.     After  the  act  had 
been  declared  void  the  agents  petitioned  to  have  previous 
proceedings  under  it  made  valid.     The  matter  was  gone 
into  at  length  before  the  Board,  and  a  report  rendered  upon 
which  no  action  was  taken.^p  In  1738  the  case  of  Phillips 

^t)ickerson,  Ant,  Col.  Govt.,  pp.  275-277.  Hazeltine,  "Appeals  from 
Col.  Courts,"  Am.  Hist.  Rv.,  1894,  pp.  319,  320.  For  an  able  discussion 
of  the  matter  from  another  point  of  view  see,  Schleslnger,  "  Colonial 
Appeals  to  the  Privy  Council,"  Pol.  Set.  Quart.,  vol.  xxviii,  pp.  440-446. 
Andrews,  "  The  Influence  of  Colonial  Conditions  as  Illustrated  by 
the  Connecticut  Intestacy  Law,"  in  Select  Essays  in  Anglo  American 
Legal  History,  vol.  i,  pp.  431-463. 

t/*  "  It  was  declared  void  at  once,  without  any  iReference  to  the  Board 
of  Trade,  a  thing  that  was  never  done  in  any  other  case,  before  or  since, 
to  my  knowledge,"  Paris  to  Allen,  26  July  1738,  Conn.  Hist.  Coll., 
vol.  V,  p.  81 ;  Citd.  by  Dickerson,  Col.  Govt.,  p.  276. 

^B.  T.  I.,  vol.  xxxix,  pp.  95,  96,  104,  III,  209,  295,  299,  316,  323,  339. 
Memorial  of  Winthrop  contending  for  the  invalidity  of  the  act,  CO/5- 
1267  R»  109;  28  April  1730. 


/ 


I06  REVIEW  OF  COLONIAL  LEGISLATION  [524 

VS.  Savage  called  in  question  the  validity  of  a  similar  act 
of  Massachusetts.  But  here  the  law,  together  with  several 
acts  additional  thereto,  had  been  confirmed  by  lapse  of  time 
under  the  terms  of  the  provincial  charter.  Its  validity  was 
consequently  upheld  and  the  appeal  dismissed,  a  result  dia- 
metrically opposite  from  that  attained  in  Winthrop  vs. 
Lechmere.^  Several  years  later,  when  Samuel  Clark,  of 
Connecticut,  appealed  to  vindicate  a  claim  at  common  law 
to  lands  settled  upon  one  Tousley  according  to  the  laws  of 
the  colony,  the  appeal  was  dismissed,  and  the  validity  of 
the  apt  of  1699  finally  established. 

f  The  great  number  of  "  private  "  acts,  afifecting  the  legal 
!  rights  or  the  property  of  some  particular  person  or  group 
I  of  persons  therein  named,  which  were  passed  by  the  colonial 
j  assemblies,  led  to  the  imposition  of  various  restrictions  upon 
their  enactment,  transmission  and  review.  It  was  insisted 
that  every  such  law  should  contain  a  "  saving  clause  "  pro- 
tecting the  rights  of  the  crown  and  of  all  persons  other 
than  those  mentioned  in  the  act.^  In  1719  the  Board  pro- 
posed that  no  private  acF passed  in  America  should  be  in 
force  "  till  confirmed  here  by  His  Majesty."  This  prohi- 
bition had  been  incorporated  in  the  instructions  to  the  gov- 
ernors of  the  Island  colonies  when,  in  1723,  at  the  sugges- 
tion of  the  committee,  it  was  made  general  and  sent  to  all 
colonies.^  Moreover,  governors  were  forbidden  to  approve 
private  acts  affecting  real  property  until  proof  had  been 
made  before  them  in  council  that  public  notification  of  in- 

»  Hazeltine,  "Appeals  from  Col.  Courts,"  Am.  Hist.  Rv.,  1894  PP.  3i9. 
320.  Schlesinger,  "Col.  Appeals,"  Pol.  Sci.  Quart.,  vol.  xxviii,  p.  442. 
Act^atid  Resolves,  vol.  i,  note,  p.  667. 

^•^0/5-1271,  V,  13.    N.  Y.  Col.  Docs.,  vol.  v,  p.  126;  27  December  1709. 

In  1718  the  Board  resolved  that  "such  private  acts  as  shall  in  the 

future  be  transmitted  without  said  clauses,  will  be  laid  before  His 

Majesty  for  disapprobation."    B.  T.  J.,  vol.  xxviii,  p.  35. 

» B.  T.  J.,  vol.  XX,  pp.  260,  267.    A.  P.  C,  vol.  iii,  p.  42 ;  27  June  1723. 


525]  PROCEDURE  IN  REVIEW  107 

troduction  into  the  assembly  had  been  given  for  three  suc- 
cessive Sundays  in  the  several  parish  churches  where  the 
premises  in  question  were  situated/ 

Governors  transmitted  private  laws  "  under  Separate 
Seals,  Separate  and  distinct  "  from  those  that  were  public ; 
and  in  England  further  safeguards  restricted  their  progress. 
Although  the  Board  referred  public  acts  to  the  law  officers 
as  a  matter  of  course,  it  did  not,  as  a  rule,  so  refer  those  of 
a  private  nature  until  some  one  appeared  to  stand  sponsor 
for  them.  Time  and  again  the  Board  urged  upon  gover- 
nors the  absolute  necessity  of  having  some  one — ^not  neces- 
sarily the  colonial  agent  —  appointed  to  give  information 
upon  every  private  bill  and  to  pay  the  required  fees  in  the 
various  offices.^  After  having  secured  a  law  report,  it  was 
necessary  for  the  person  in  charge  of  a  private  law  to  wait 
upon  the  secretary  of  the  Board  and  urge  him  to  move  for 
a  favorable  report  upon  it.  In  1727  it  became  the  settled 
policy  to  leave  all  private  acts  against  which  there  seemed 
to  be  no  objection  probationary  for  six  months  after  their 

*  Instruction  to  all  governors.  B.  T.  /.,  vol.  xlii,  pp.  95,  96 ;  29  June 
1733.  The  form  of  notification  used  in  Virginia  follows:  "Notice  is 
hereby  given  that  the  subscriber  does  intend  to  petition  the  next  As- 
sembly that  an  act  may  pass  empowering  me  to  dispose  of  my  Estates 
in  the  same  manner  as  if  I  had  never  been  married,  that  any 
person  who  hath  anything  to  object  may  appear."  CO/5-1325,  V,  31. 
Governors  were  required  to  transmit  with  private  acts  certificates  show- 
ing that  these  precautions  had  been  duly  observed. 

'"If  there  be  nobody  here  to  follow  such  [private]  acts  they  [the 
attorney  and  solicitor]  will  not  report  upon  them,  and  frequently  upon 
the  Removal  of  Attomies  or  Solicitors  said  acts  are  liable  to  be  lost." 
Board  to  Hunter,  CO/5-995,  p.  327;  22  March  1716.  "Some  persons 
should  be  appointed  here  to  solicit  the  dispatch  of  this  and  all  other 
private  acts,  and  to  pay  the  fees  in  the  several  offices,  *  "  CO/5-915, 
p.  20;  4  June  1719-  CO/5-915,  p.  276.  CO/5-726,  p.  99.  CO/5-1360, 
p.  24.  A  general  instruction  was  issued  to  the  same  effect,  8  July  1720. 
B.  T.  /.,  vol.  xxix,  p.  246. 


I08  REVIEW  OF  COLONIAL  LEGISLATION  [526 

consideration  at  the  Board/  If  during  the  period  of  pro- 
bation no  objection  was  raised  against  them,  a  representa- 
tion was  signed,  stating  that  they  had  passed  through  all 
the  forms  prescribed  by  instructions,  that  they  contained  a 
suspending  clause,  had  met  with  no  objection  from  the  law 
officer  or  from  parties  concerned  in  their  operation,  and 
were  fit  to  be  confirmed.^ 

y'  The  requirement  that  private  acts  contain  a  suspending 
i<Y  clause  was  never  acquiesced  in  by  Pennsylvania  or  Massa- 
\   chusetts  because  of  the  charter  provisions  that  laws,  unless 
^  disallowed,  should  be  in  force  from  the  time  of  enactment. 
Massachusetts,  which  had  passed  forty-seven  private  laws 
prior  to  1724,  when  the  governors  were  instructed  to  insist 
upon  the  inclusion  of  a  suspending  clause,  enacted  none 
during  the  twenty  years  following.     After  1743  she  sub- 
mitted seventeen  private  acts,  most  of   which  were  dis- 
allowed for  want  of  the  required  clause.    New  Hampshire 
was  also  negligent  in  this  respect.     Virginia  and  other 
southern  colonies,  however,  made  extensive  use  of  private 
laws  to  dock  entails  upon  lands,  and  generally  complied 
with  all  the  required  forms. 

*A  New  York  act  was  ordered  to  lie  by  for  six  months,  and  "if 
during  that  time  no  objections  shall  be  made  thereto,  their  Lordships 
would  represent  the  same  to  His  Majesty  as  proper  to  be  confirmed, 
and  that  the  same  method  shall  be  observed  in  respect  to  all  private 
acts  for  the  future."  B.  T.  /.,  vol.  xxxv,  p.  8;  12  January  1727.  In 
view  of  the  charter  limitation  it  was  scarcely  practical  to  subject  Penn- 
sylvania laws  to  this  delay.  CO/5-1294,  p.  84.  But  that  colony  passed 
comparatively  few  private  acts. 

'Favorable  representations  upon  such  acts  approached  a  formula. 
Representation  upon  thirteen  acts  of  Virginia,  CO/5-1366,  pp.  103,  107; 
29  June  1733. 


CHAPTER  IV 

The  ]PoLicY  of  the  British  Government  in  Legisla- 
tive Review:  Trade,  Shipping  and  Finance 

The  British  government,  by  means  of  colonial  charters, 
and  commissions  and  instructions  to  the  governors,  im- 
posed various  restrictions  upon  the  law-making  power  of 
the  assemblies.  But  upon  no  occasion  did  it  formulate  a 
positive  or  comprehensive  statement  of  its  policy  in  regard 
to  colonial  legislation.  Summarized  in  a  general  way,  the 
documents  mentioned  above  yield  a  series  of  negations. 
Laws  were  to  be  not  repugnant  to  those  of  England,  not 
inimical  to  the  acts  of  Parliament  regarding  colonial  trade 
or  to  the  commercial  policy  of  the  British  Empire,  and  not 
detrimental  to  the  royal  prerogative.  The  varied  interests 
by  which  the  government  consciously  or  unconsciously  was 
influenced,  and  the  general  principles  by  which  it  was 
guided,  are  revealed  more  plainly  in  the  many  "  opinions 
in  point  of  law,"  Board  representations,  committee  reports 
and  orders  in  council.  These  show  that  under  normal 
conditions  each  individual  law  was  scrutinized  not  only  for 
violations  of  the  instructions,  but  also  with  a  view  to  its 
probable  expediency  for  the  colony  and  the  Empire,  pos- 
sible injury  to  other  colonies,  and  unseemly  infringements 
upon  rights  to  private  property  or  individual  liberty. 

There  was  no  conscious  cleavage  between  the  political 
and  economic  aspects  of  the  government's  policy  toward 
legislation.  In  their  larger  sense  the  terms  "  conformity  " 
and  "  repugnant "  included  breaches  of  the  acts  of  trade, 
as  well  as  cases  of  divergence  from  the  common  law.  Rev- 
527]  109 


i^ 


^jii 


no  REVIEW  OF  COLONIAL  LEGISLATION  [528 

enue  acts  were  regarded  with  a  double  concern — their  prob- 
able effect  upon  British  trade  and  shipping,  and  the  estab- 
lishment of  adequate  salaries  for  royal  appointees.  Unless 
properly  susbservient  to  the  crown,  the  contribution  of  the 
colonies  to  the  economic  well-being  of  the  Empire  was  un- 
certain and  of  little  value.  It  is  difficult  to  say,  therefore, 
whether  the  government  gave  to  the  one  or  the  other  the 
greater  emphasis  in  its  treatment  of  colonial  legislation. 
Issues  raised  by  questions  of  taxation  and  revenue,  which 
affected  the  interests  of  the  merchants,  were  brought  to  the 
attention  of  the  Board  in  a  particularly  speedy  and  insistent 
fashion.  Moreover,  they  were  more  clear-cut  and  suscep- 
tible to  settlement  by  anticipatory  instructions  than  were 
those  growing  out  of  encroachments  upon  the  prerogative. 
The  fact  that  the  colonists  learned,  in  a  large  measure,  to 
acquiesce  in  a  consistent  policy  regarding  matters  of  trade, 
while  the  assemblies,  responsive  to  popular  sentiment  and 
strong  in  their  control  over  appropriations,  continued  to 
encroach  upon  the  "  twilight  zone  "  which  lay  beyond  their 
proper  field  of  legislation,  explains,  at  least  in  part,  why 
the  economic  aspect  appears  to  have  been  the  more  promi- 
nent prior  to  1750  or  1760,  and  why  the  emphasis  was 
perhaps  political  thereafter. 

In  so  far  as  the  government's  economic  policy  toward 
the  colonies  rested  upon  theory,  its  cardinal  point  was  the 
idea  of  a  self-sustaining  empire,  in  which  the  colonies 
should  be  useful  primarily  to  furnish  raw  commodities,  and 
to  consume  the  products  of  British  manufactures.  Com- 
mercial restrictions,  it  was  claimed,  were  intended  not  to 
benefit  the  mother  country  at  the  expense  of  the  colonies  or 
vice  versa,  but  to  work  for  the  economic  stability  and  in- 
tegrity of  the  Empire  as  a  whole.  Commercial  relations 
between  the  two  were  to  be  reciprocally  beneficial.  The 
attitude  of  the  Board  of  Trade  toward  colonial  enactments 


529]  POLICY  IN  REVIEW  m 

regarding  matters  of  trade,  shipping  and  finance  was  de- 
termined, in  a  large  measure,  by  this  conception  of  an  eco- 
nomically self-sufficient  empire. 

At  first  the  colonies  were  allowed  to  levy  imposts  upon 
English  goods,  provided  that  such  acts  contained  a  sus- 
pending clause  and  were  calculated  to  furnish  necessary 
revenue  without  adversely  affecting  the  trade  and  shipping 
of  Great  Britain/  In  1718,  however,  the  proprietors  of 
North  Carolina  were  ordered  to  veto  an  act  laying  a  duty 
of  ten  per  cent  upon  all  goods  of  British  manufacture  im- 
ported, and  to  direct  the  governor  not  to  assent  to  its  like 
in  the  future.^  Following  the  enactment  of  a  three  per  cent 
impost  without  the  required  suspension  by  the  Leeward 
Islands,  and  a  New  York  act  levying  two  per  cent,  the  gov- 
ernment, at  the  instigation  of  the  merchants,  issued  general 
instructions  forbidding  the  governors'  assent  to  any  law 
laying  a  duty  upon  European  goods  imported  in  English 
vessels/ 

This  prohibition  was  strictly  enforced,  even  when  the 
colonists  attempted  to  attain  their  result  in  an  indirect  man- 
ner. The  Council,  for  example,  disallowed  a  Massachusetts 
excise  which  was  payable  by  the  retailer,  upon  the  ground 
that  it  would  lessen  the  value  of  goods  imported  and  so 
affect  the  trade  of  Great  Britain.*  Objection  was  raised  to 
a  North  Carolina  act  subjecting  pedlars  to  an  impost  of  ten 
per  cent  upon  the  sworn  value  of  their  goods,  because  "the 
tax  seemed  calculated  to  discourage,  if  not  Prohibit,  the 
free  Circulation  of  petty  Trade  and  Traffic  "  and  to  be 

*  Board  to  Hunter,  N.  Y.  Col.  Docs.,  vol.  v,  p.  501.  Board  to  Shute, 
Acts  and  Resolves,  vol.  ii,  p.  69;  4  June,  1719. 

^  A.  P.  C,  vol.  ii,  p.  740. 

'  A.  P.  C,  vol.  iii,  p.  40;  6  October,  1722.    CO/5-1124,  p.  238. 

*  Acts  and  Resolves,  vol.  iii,  pp.  49s,  508. 


112  REVIEW  OF  COLONIAL  LEGISLATION  [530 

"  restrictive  upon  Trade  [and]  the  dispersion  of  British 
manufactures  throughout  the  Continent"  ^  The  Council 
instructed  Massachusetts  to  amend  an  act  which  laid  a 
double  impost  upon  goods  imported  by  inhabitants  of  other 
colonies,  so  that  British  goods  would  not  be  subject  to 
duties  as  upon  foreign  commodities.  Because  of  a  Georgia 
law  which  was  intended  to  lay  an  equal  assessment  upon 
property  of  every  kind,  the  governor  was  directed  to  see 
that  similar  acts  in  the  future  should  clearly  express  the 
tax  "to  be  ad  valorem  upon  stock  in  trade  and  not  upon 
goods  and  merchandise  imported."  ^ 

In  regard  to  export  duties  the  government  was  more 
liberal.  The  colonies  appear  to  have  used  them  quite  ex- 
tensively for  purposes  of  revenue.  But  they  were  not  cotm- 
tenanced  if  unreasonable,  if  adverse  to  the  interests  of 
British  manufacturers  in  that  their  operation  served  to 
raise  the  price  of  raw  materials,  or  if  so  levied  as  to  nullify 
bounties  paid  by  the  English  government  upon  colonial 
products.  Thus,  the  Council  disallowed  a  Georgia  law 
which  imposed  an  export  duty  upon  raw  hides,  because  by 
its  operation  "  an  article  of  general  use  and  importance  to 
the  manufacturers  of  this  Kingdom  would  be  enhanced  in 
price."  The  act  "  could  not  but  be  prejudicial  to  the  in- 
terests of  the  Mother  Country  and  tends  to  give  a  prefer- 
ence to  the  manufactures  of  the  Colony  against  [those]  of 
Great  Britain."  « 

In  like  manner  the  government  made  no  objection  to  the 
imposition  of  duties  upon  the  impoftatTori^of  slaves  and 
convicts,  provided  the  charges  fixed  were  calculated  to  raise 
a  necessary  revenue  without  placing  a  prohibitory  burden 

^  A.  P.  C,  vol.  V,  p.  127. 

'  C0/s-6si,  p.  381 ;  16  June,  1772.    A  similar  case  arose  in  1774.    A. 
P.  C,  vol.  V,  p.  403. 
»  A.  P.  C.  vol.  V,  p.  316;  June,  1771. 


53 1  ]  POLICY  IN  REVIEW  1 1 3 

Upon  the  traffic.  The  amount  of  duty  permitted  upon 
negroes  seems  to  have  depended  largely  upon  the  forbear- 
ance of  the  Royal  African  Company  and  the  English  mer- 
chants. Several  acts  of  Virginia  levying  twenty  shillings 
sterling  passed  without  notice;  but  a  law  of  1723  carrying 
a  duty  of  forty  shillings,  to  which  they  objected,  was 
disallowed.  Against  this  act  the  merchants  urged  that 
lessening  the  number  of  negroes  would  increase  the  price 
of  labor  and  decrease  the  production  of  commodities,  with 
consequent  injury  to  the  customs  and  trade  of  Great  Brit- 
ain. The  representation  of  the  Board  emphasized  the  prob- 
ability that  the  act  would  discourage  the  production  of  naval 
stores,  especially  in  the  two  new  counties  where  his  majesty 
had  remitted  the  payment  of  quit  rents  for  seven  years  in 
order  to  encourage  settlement.  In  recommending  the  dis- 
allowance of  a  similar  act  passed  in  1728,  the  king*s  counsel 
carried  the  argument  a  step  further  by  stating  that  a  de- 
crease of  the  tobacco  crop  caused  by  a  scarcity  of  slaves 
would  lessen  the  purchasing  power  of  the  colony  and 
"  amount  to  a  duty  upon  the  importation  of  British  manu- 
factures." ^  After  considering  several  negro  acts  of  Bar- 
badoes.  South  Carolina,  New  York  and  Maryland  in  1729, 
the  Board  instructed  the  governors  to  procure  laws  substi- 
tuting other  duties  in  lieu  of  those  upon  slaves,  inasmuch 
as  they  "do  in  some  measure  enhance  the  price  of  Labour, 
and  consequently  [that]  of  several  commodities  produced 
in  the  Plantations  wherein  our  neighbors  rival  us  in  for- 
eign markets."  ^  The  number  of  acts  imposing  negro  duties 
which  were  subsequently  disallowed  shows,  however,  that 
this  manner  of  raising  money  was  popular  with  the  assem- 

1  CO/5-1319,  O,  49;  5  December,   1723.     CO/5-1365,  p.  269.     CO/5- 
1366,  p.  28.    CO/S-1321,  P-  28. 
*  B.  r.  J.,  vol.  xxxviii,  pp.  246,  262 ;  October,  1729. 


114  REVIEW  OF  COLONIAL  LEGISLATION  [532 

blies,  and  that  there  existed,  as  well,  considerable  sentiment 
in  favor  of  restricting  the  importation  of  blacks.  Indeed, 
Virginia  went  so  far  as  to  declare  that  this  impost  was  the 
only  one  which  without  oppression  could  be  laid  upon  the 
imports  or  exports  of  the  colony.^ 

For  the  protection  of  slave  dealers,  the  government  in- 
sisted that  no  duty  be  laid  upon  negroes  brought  into  a 
colony  and  re-exported  within  one  year,^  and  that  all  duties 
be  payable  by  the  purchaser  rather  than  by  the  importer. 
When  levied  upon  the  latter,  he  was  often  obliged  to  hold 
the  negroes  at  great  expense  on  shipboard  pending  their 
sale.    The  expedient  of  placing  the  duty  upon  the  purchaser, 
which  was  adopted  at  the  suggestion  of  the  merchants, 
lessened  the  outlay  and  consequent  risk  to  be  borne  by  the 
dealer,  and  was  at  first  thought  to  be  of  less  burden  upon 
the  trade.    In  1770,  however,  the  king's  counsel  pointed  out 
that  the  distinction  between  dues  paid  by  the  importer  and 
the  purchaser  was  largely  fallacious,  since  "  all  such  duties 
must  in  the  end  be  paid  by  the  purchaser,  raise  the  price 
and  thereby  lessen  the  demand."  ^ 
/     Alleging  that  transported  convicts  committed  numerous 
/    crimes  and  caused  the  local  governments  great  expense,  sev- 
{    eral  colonies  sought  to  lessen  the  number  sent  over  from 
\  England.    Toward  laws  aimed  to  accomplish  this  object  by 
Nthe  imposition  of  duties,  the  attitude  of  the  English  gov- 

^  An  early  act  of  South  Carolina  which  imposed  a  duty  of  ten  pounds 
was  ordered  "  to  be  repealed ".  B.  T.  J.,  vol.  xxxix,  p.  72.  C-O/5-361, 
C,  79.  Acts  of  Virginia  which  levied  as  high  a  duty  as  25  per  cent 
were  disallowed  in  1768  and  1770.  A.  P.  C,  vol.  v,  pp.  164,  286.  A 
law  of  Pennsylvania  was  disallowed  in  1773.  A.  P.  C,  vol.  v,  p.  398. 
Other  acts  were  ordered  to  be  amended,  or  allowed  to  lie  by.  B.  T.  J., 
vol.  xl,  p.  217.    A.  P.  C,  vol.  iii,  pp.  422,  393.    A.  P.  C,  vol.  v,  p.  362. 

»  CO/5-1128,  p.  139;  5  July,  1753. 

»  B.  T.  /.,  vol.  xxxix,  p.  72.  B.  T.  /.,  vol.  xl,  p.  217;  1723.  CO/5- 
1332,  Aa,  79. 


533]  POLICY  IN  REVIEW  II5 

ernment  was  similar  to  that  regarding  duties  upon  slaves^^ 
To  a  reasonable  tax  for  revenue  it  offered  no  objection; \ 
but  several  acts  it  disallowed  because  their  provisions  would   \ 
have  placed  a  prohibitive  burden  upon  the  traffic.     The     | 
policy  of  the  government,  however,  was  in  this  case  more 
firm  and  consistent  because  such  laws  came  into  conflict  J 
with  acts  of  Parliament  providing  for  the  transportation*^^ 
of  convicted  felons.     Complaining  that  the  difficulties  im- 
posed upon  importers  amounted  ''  almost  to  a  prohibition," 
the  Council  disallowed  an  act  of  Virginia  which  provided 
that  no  convict  should  be  sold  or  disposed  of  for  a  less 
term  than  that  for  which  he  had  been  transported.     For 
the  convict's  good  behavior,  the  law  required  one  hundred 
pounds  security  from  the  dealer  and  ten  pounds  from  the 
purchaser.^    For  the  same  reason  the  Council  insisted  upon 
the  amendment  of  several  Pennsylvania  acts  which  levied 
a  duty  of  five  pounds  upon  each  convict  and  required  of  the 
importer  fifty  pounds  security  for  good  behavior.^ 

In  the  interests  of  British  shipping,  the  government 
strongly  objected  to  the  practice  of  allowing  exemptions 
on  imposts  or  tonnage  dues  to  vessels  owned  by  inhabitants 
of  the  colonies.  A  Virginia  law  of  1684  was  annulled  in 
part  because  it  contained  an  exemption  in  favor  of  local 
shipping.*     The  Board  complained  that  a  Massachusetts 

1  "  Amending  the  act  regarding  Servants  and  Slaves,  and  the  better 
Government  of  Convicts,"  A.  P.  C,  vol.  iii,  p.  54;  Disallowed  6  Au- 
gust, 1723.  This  law  was  brought  to  the  Board's  attention  by  a  con- 
tractor for  transporting  convicts.  CO/5-1319,  Q,  36,  CO/5-1365,  p. 
252.    CO/5-1319,  Q,  37- 

2  The  original  act  to  which  the  others  were  supplementary  was 
passed  in  1738  and  confirmed  by  lapse  of  time.  Pa.  Stats.,  vol.  iii,  p. 
501 ;  vol.  iv,  p.  467.  A  similar  law  passed  in  1742  was  disallowed  in 
1746.  A.  P.  C,  vol.  iv,  p.  20.  An  act  of  New  Jersey  was  annulled  in 
1732.    CO/5-972,  E,  70.    A.  P.  C,  vol.  iv,  p.  140.    CO/5-1278,  Z,  8. 

3  Hening,  vol.  iii,  pp.  23,  38.    Beer,  Old  Col.  System,  vol.  i,  p.  208. 


Il6  REVIEW  OF  COLONIAL  LEGISLATION  [534 

act  which  exempted  sloops  and  other  vessels  under  twelve 
tons  made  "  the  duty  lie  singly  upon  ships  belonging  to 
England."  ^  A  Virginia  law  of  1730  granted  vessels  be- 
longing solely  to  Virginians  a  reduction  of  fifty  per  cent  in 
an  impost  upon  liquors.  This  was  disallowed  upon  a  com- 
plaint from  the  merchants  that  it  was  "  a  very  partial  stip- 
ulation to  the  inhabitants  of  that  Colony  "  and  "  manifestly 
designed  to  encourage  their  trade  and  navigation  in  oppo- 
sition to  that  of  Great  Britain."  ^  Shortly  after  the  gover- 
nors were  forbidden  to  pass  any  law  whereby  colonial  in- 
habitants were  put  on  a  more  advantageous  footing  than 
those  of  Great  Britain;  and  as  a  result  of  the  enactment 
of  a  South  Carolina  law  which  contained  exemptions  par- 
tial to  local  shipping,  they  were  commanded  more  explicitly 
in  1755  to  allow  "  no  greater  duties  upon  ships  and  goods 
of  non-residents  than  upon  natives  of  the  Province."  ^ 

The  British  government  conceded  to  each  colony  a  right 
of  supervision  over  the  Indian  trade  within  its  own  borders. 
But  it  insisted  that  such  control  be  so  exercised  as  to  fur- 
ther the  economic  interests  of  the  Empire  as  a  whole,  by 
enforcing  order  and  preventing  frauds  and  abuses,  without 
^  injuring  the  trade  of  neighboring  colonies  or  imposing  un- 
due restraint  upon  the  distribution  and  consumption  of 
British  manufactured  articles.  Otherwise,  the  government 
feared,  prices  would  increase  and  the  Indians  would  turn 
for  trade  to  the  French  and  Spanish.*  It  was  insisted,  sdso, 
that  such  regulation  should  not  constitute  a  monopoly, 
cither  by  granting  exclusive  rights  to  a  company  of  traders, 
or  to  inhabitants  of  Jhe^pQlony,  or  by  vesting  arbitrary 

*  CO/5-909,  p.  281. 
'  CO/S-1366,  p.  75. 

*  A.  p.  C,  vol.  iii,  p.  348;  27  January,  1732.     N.  H.  St.  Pap.,  vol 
xviii,  p.  45.    CO/5-403,  p.  41. 

^^i.  P.  C,  vol.  ii,  p.  610;  26  September,  1709. 


535]  POLICY  IN  REVIEW  II7 

powers  in  a  local  commission.  All  British  subjects,  the 
Board  declared,  were  free  under  English  law  and  the  acts 
of  Parliament  to  avail  themselves  of  a  share  in  the  planta- 
tion trade  with  his  majesty's  allies/  A  Virginia  act  was 
disallowed  in  1767,  for  example,  because  the  powers 
granted  to  trustees  did  "  in  effect  institute  a  monopoly." 
Such  restrictions,  said  the  Board,  "  we  consider  destructive 
of  that  general  freedom  of  Trade  and  Traffic  which  both 
by  the  Law  of  this  country  and  the  policy  of  all  commer- 
cial nations  is  and  ought  to  be  accessible  to  every  indi- 
vidual." ^ 

In  like  manner  the  government  permitted  colonies  to 
regulate  the  cultivation  and  shipment  of  tobacco,  provided 
that  in  doing  so  they  caused  no  undue  inconvenience  to 
English  shipping  or  marked  decrease  in  the  revenue  of  Great 
Britain.  For  the  convenience  of  shippers,  the  Board  pre- 
vailed upon  Maryland  to  reduce  the  size  of  the  tobacco 
hogshead  prescribed  by  law,  to  conform  with  that  adopted 
by  Virginia,  and  to  decrease  the  penalty  for  defacing  orj 
breaking  open  the  casks. ^  At  the  instigation  of  the  mer- 
chants a  Virginia  law  to  "  Prevent  Frauds  in  the  Tobacco 
Trade  "  was  disallowed  because  the  taxes  and  restrictions 
imposed  were  "a  burden  and  a  clogg  to  the  trade."  *  Later, 
however,  both  the  merchants  and  the  Board  conceded  the 

i**^  Report  of  the  solicitor  upon  an  act  of  Virginia  which  granted  ex- 
clusive privileges  to  a  local  company.  CO/5-1364,  p.  463;f'2i  Jime, 
1717.^  A^F.  Cj  vol.  ii,  p.  721.  ~ 

^  A.  P.  C,  vol.  V,  p.  36.  The  king's  counsel  expressed  a  similar 
opinion  in  connection  with  an  act  of  South  Carolina.  CO/5-371,  H. 
55;  October,  1722.  Arbitrary  powers  vested  in  commissioners  were 
responsible  in  part  for  the  disallowances  of  ten  acts  of  New  York  in 
December,  1729.    A.  P.  C,  vol.  iii,  p.  209. 

\ti^CO/s-727,  p.  24s;  8  May,  171 1. 

*  CO/5-1364,  pp.  463,  474.    A.  P.  C,  vol.  ii,  p.  721 ;  June,  1717. 


^ 


<^ 


/ 


Il8  REVIEW  OF  COLONIAL  LEGISLATION  [535 

necessity  of  strict  supervision  over  the  marketing  and  ship- 
ment of  tobacco,  and  a  law  passed  in  1730  for  "Amending 
the  Staple  of  Tobacco,"  which  provided  that  the  weight  of 
each  hogshead  should  be  stamped  thereon  by  an  inspector, 
and  that  unmerchantable  tobacco  should  be  destroyed,  re- 
mained in  force/ 

j  Since  the  continental  colonies  were  supposed  to  benefit 
the  mother  country  and  to  contribute  to  the  well-being  of 
the  Empire  chiefly  by  their  consumption  of  British  manu- 
factured articles,  it  was  inevitable  that  the  government 
should  discourage  all  colonial  enterprise  which  might  com- 
pete with  home  industries.  Otherwise,  it  was  feared,  the 
colonies  would  become  more  and  more  self-sustaining,  with 
consequent  loss  to  British  shipping,  decrease  of  imperial 
revenue  and  injury  to  English  manufactures.  To  keep  the 
American  market  open  to  British  enterprise,  acts  of  Par- 
liament forbade  intercolonial  trade  in  woolen  goods  and 
hats,  and  the  manufacture  of  iron  ware.  By  its  commis- 
sion, the  Board  was  directed  to  consider  means  whereby 
the  colonies  could  be  prevented  from  furnishing  themselves 
or  other  colonies  with  what  could  be  supplied  from  the 
mother  country;  and  the  governors  had  strict  instructions 
against  assenting  to  any  laws  encouraging  the  establishment 
of  manufactures  which  might  compete  with  those  of  Eng- 
land.^ Largely  as  a  result  of  the  government's  determined 
attitude  in  the  matter,  comparatively   few  laws   for  this 

I  purpose  were  enacted  in  the  Plantations.  J^^'Tnpassing  upon 

1  The  commissioners  of  the  customs  urged  that  the  act  would  de- 
crease the  king's  revenue  and  should  be  disallowed.  The  merchants 
petitioned  against  its  confirmation,  but  did  not  press  their  case,  and  it 
was  allowed  to  lie  by  at  the  earnest  solicitation  of  Governor  Gooch. 
C0/S-IZ22,  R,  126,  R,  152,  R,  13s,  R,  141,  R,  142.  CO/5-1366,  p.  61. 
A.  P.  C,  vol.  iii,  p.  326;  I  July,  1731. 

»  CO/S-918,  p.  295.    A.  P.  C,  vol.  iv,  p.  482. 


537]  POLICY  IN  REVIEW  1 19 

an  act  of  South  Carolina  to  "  encourage  the  making  of 
flax,  linnen  and  thread,"  the  Board  commended  a  bounty 
upon  the  production  of  flax.  But,  continued  the  report, 
"  there  is  also  thirty  pounds  for  every  hundred  weight  of 
linnen  made  in  the  Colony,  which  being  a  manufacture  of 
this  Kingdom  .  .  .  the  Establishment  of  it  in  the  Colonies 
ought  ...  to  be  discouraged."  ^  An  act  of  Virginia  allow- 
ing a  drawback  of  export  duties  upon  dressed  hides  was 
disallowed  as  "an  express  and  avowed  Act  for  the  promo- 
tion and  management  of  a  Manufacture  as  an  article  of  Ex- 
portation and  Commerce.  Every  such  attempt  ought  in 
policy  and  Reason  to  be  discouraged  and  suppressed."  * 

Indeed,  the  argument  that  a  particular  line  of  action 
would  work  to  the  advancement  of  colonial  manufactures 
never  failed  to  command  attention  at  the  Board  of  Trade, 
and  it  was  used  frequently  both  by  colonists  and  the  mer- 
chants with  telling  effect.  By  a  clever  stroke  the  support- 
ers of  the  long-contested  Connecticut  intestate  law  urged 
that  if  the  English  rule  which  gave  all  real  estate  to  the 
eldest  son  was  forced  upon  the  colony,  the  younger  sons 
would  be  driven  from  agriculture,  and  from  sheer  necessity 
would  turn  to  trade  and  manufacturing.*  The  Council  for- 
bade Virginia  to  close  her  ports  to  the  trade  of  North  Caro- 
lina lest  the  inhabitants  of  the  latter  community  be  forced 
to  adopt  a  similar  course.*  With  this  motive  the  Board 
also  discouraged  the  establishment  of  ports  and  towns  in 
Maryland  and  Virginia.  At  the  instigation  of  the  mer- 
chants, and  with  the  congiiT^^^       of  tjie  commissioners  of 


^  A.  P.  C,  vol.  V,  p.  320;  IS  January,  1772. 

«  A.  P.  C,  vol.  V,  p.  Z7 ;  26  June,  1767. 

'  Select  Essays  in  Anglo  American  Legal  History,  vol.  i,  pp.  431- 
463.  An  essay  by  Andrews  upon  the  "  Influence  of  Colonial  Conditions 
as  Illustrated  by  the  Conn.  Intestacy  Law." 

*  A.  P.  C,  vol.  iii,  p.  346;  25  November,  1731. 


I20  REVIEW  OF  COLONIAL  LEGISLATION  [538 

the  customs,  the  governors  of  these  colonies  were  urged  to 
secure  the  designation  of  certain  ports  exclusive  of  others 
for  the  lading  and  unlading  of  ships.  But  the  assemblies, 
with  a  largeness  of  vision  characteristic  of  frontier  com- 
munities, went  further  than  either  the  Board  or  the  cus- 
toms desired,  by  setting  up  incorporated  towns  as  well  as 
ports,  and  granting  extensive  privileges  to  their  inhabitants. 
It  was  feared  that  the  growth  of  towns  would  cause  the 
inhabitants  to  take  up  manufacturing  and  neglect  tobacco 
raising  to  the  consequent  detriment  of  British  shipping, 
revenue  and  industry,  and  the  laws  passed  by  both  colonies 
were  disallowed.^ 

No  other  question  within  the  realm  of  trade  and  finance 
caused  the  English  authorities  greater  perplexity  or  affected 
the  economic  interests  of  the  colonists  in  a  more  vital  fash- 
ion than  did  the  issue  of  paper  currency.  The  traditions 
of  the  British  government  furnished  no  sanction  for  fiat 
money,  while  the  merchants  and  other  creditors  clamored 
to  be  relieved  from  losses  caused  by  unnecessary  deprecia- 
tion. Upon  the  other  hand,  the  colonies  were  permitted 
neither  to  establish  mints  for  making  their  own  coins,  nor 
to  regulate  shipping  and  commerce  in  such  a  manner  as  to 
obtain  for  themselves  a  favorable  balance  of  trade,  and  so 
prevent  the  further  exportation  of  such  coin  as  they  pos- 
sessed to  England.  Letters  from  the  governors  dwelt  con- 
tinually upon  the  lack  of  currency  in  the  colonies,  and  the 
necessity  for  securing  some  constant  and  recognized  me- 
dium of  exchange  for  commercial  transactions  and  the  pay- 
ment of  taxes.  Consequently  the  government  conceded 
with  reluctance  that  a  reasonable  amount  of  paper  currency 
with  ample  provision  for  its  refunding  might  prove  a  benefit 
rather  than  a  detriment  to  trade,  and   spent  its  efforts 

^-CO/5-1362,  p.  432;  18  November  1709. 


539]  POLICY  IN  REVIEW  I2i 

chiefly  in  attempting  to  secure  a  proper  regulation  of  the 

bills  issued.     To  safeguard  the  interests  of  creditors  and 

protect  the  colonies  from  the  evil  effects  of  depreciation, 

the  Board  came  gradually  to  insist:  (i)  that  the  amount 

of  bills  issued  be  limited  to  the  minimum  which  would 

serve  the  legitimate  needs  of  the  colony  for  a  circulating 

^ )    medium,  (2)  that  ample  provision  be  made  for  refunding 

\^   and  that  such  provision  be  strictly  observed,  (3)  that  the 

bills  be  of  definite  and  limited  duration  and  that  they  be  not 

\   re-issued,  and  (4)  that  they  should  not  be  made  legal  ten- 

Vder  for  the  payment  of  debts  or  taxes. 

The  fact  that  bills  once  issued  and  placed  in  the  hands 
of  private  individuals  could  not  be  recalled  or  annulled  with- 
out creating  confusion  in  the  provincial  finances  and  bring- 
ing great  hardship  upon  innocent  holders,  saved  many  laws 
for  the  issue  of  paper  currency  from  disallowance,  and 
caused  the  Board  to  insist  that  acts  for  this  purpose  contain 
a  suspending  clause.^  This  check  proved  only  fairly  effec- 
tive, and  during  the  third  and  fourth  intercolonial  wars  the 
Board  admitted  that  unforeseen  circumstances  might  arise 
which  would  necessitate  an  immediate  supply,  and  make  it 
inadvisable  for  the  governor  to  insist  upon  a  suspending 
clause.  Of  this  concession  the  colonies  were  not  slow  to 
take  advantage.^ 

*  CO/5-996,  p.  175;  September,  1727.  This  instruction  was  based 
upon  that  already  issued  to  the  governor  of  Jamaica.  To  facilitate  the 
collection  of  necessary  revenue,  Massachusetts  and  New  Hampshire 
were  allowed  to  issue  each  year  an  amount  sufficient  to  pay  the  running 
expenses  of  the  government.  CO/5-916,  p.  269.  N.  H.  St.  Pap.,  vol. 
xviii,  p.  25. 

2  The  Board  to  Shirley,  CO/5-918,  p.  135 ;  28  August,  1744.  A.  P.  C, 
vol.  iii,  p.  706;  30  June,  1743.  In  1758  permission  was  given  the  gov- 
ernor of  New  Jersey  to  issue  bills  without  the  suspending  clause  "  in 
case  of  emergency  for  military  purposes,"  A.  P.  C,  vol.  iv,  p.  372. 
C'O/5-998,  p.  257. 


122  REVIEW  OF  COLONIAL  LEGISLATION  [540 

f  The  forcing  of  provincial  bills  as  legal  tender  upon  Eng- 
^/ylish  merchants,  even  at  a  rate  of  exchange  which  allov^ed 
i  for  their  depreciation,  was,  in  the  eyes  of  the  Board,  "  an 
\ intolerable  hardship."  ^  Although  it  had  discountenanced 
legal  tender  provisions  from  the  first,  the  government  took 
no  decisive  stand  in  the  matter  until  in  1751  some  inhabi- 
tants of  Rhode  Island  petitioned  the  crown  to  restrain  the 
further  emission  of  paper  currency  in  that  colony.  Because 
Rhode  Island  acts,  unless  contrary  to  the  charter  or  re- 
pugnant to  the  laws  of  England,  were  not  subject  to  dis- 
allowance by  the  Privy  Council,  Parliament  intervened  and 
passed  an  act  "  To  regulate  and  restrain  Paper  Bills  of 
Credit  in  Rhode  Island,  Connecticut,  Massachusetts  and 
New  Hampshire,  and  to  prevent  the  same  being  legal  ten- 
der in  payment  of  money."  This  act  forbade  the  enact- 
ment of  any  law  postponing  the  time  set  for  calling  in  bills 
already  subsisting,  or  whereby  any  of  them  should  be  de- 
preciated in  value,  or  re-issued  or  obtain  further  currency.* 
For  a  time  the  Board  endeavored  to  compel  all  the  colo- 
nies to  comply  with  this  act.  But  under  the  strong  neces- 
sity of  war,  this  resolution  also  broke  down.  Against  a 
law  of  Virginia  passed  in  July,  1755,  which  provided  for 
the  re-issue  of  twenty  thousand  pounds  of  paper  currency 
which  was  to  "  be  legal  tender  for  a  limited  time,"  no  ob- 
jection was  made.^  And  it  was  so  hard  to  obtain  grants 
of  supplies  from  Pennsylvania  that  the  government  per- 
mitted the  confirmation  of  acts  which  violated  all  instruc- 
tions to  the  governors  regarding  the  emission  of  bills. 

i^*  CO/S-1121,  p.  460;  29  November,  1709. 

"B.  T.  /.,  vol.  Iviii,  pp.  13,  32,  37,  38,  39;  25  June,  1751.  Board  to 
Wentworth,  CO/5-941,  p.  297.  Pickering,  Stats,  at  Large,  175 1,  chapter 
53. 

» CO/5'1329,  X,  24. 


54l]  POLICY  IN  REVIEW  123 

Thus,  in  1757,  an  act  which  made  thirty  thousand  pounds 
legal  tender  for  ten  years,  and  contained  no  suspending 
clause,  was  confirmed  because  "of  the  great  exigencies  of 
the  present  conjuncture,  when  supplies  are  so  absolutely 
necessary  for  Your  Majesty's  service."  ^  And  in  the  year 
following,  two  acts  for  the  emission  of  sixty  and  fifty-five 
thousand  pounds  to  be  legal  tender  were  allowed  because, 
the  bills  having  been  issued  and  circulated,  the  repeal  of 
the  laws  would  cause  the  greatest  confusion.^  In  like  man- 
ner an  act  of  Georgia  was  confirmed  despite  the  fact  that 
the  bills  were  to  be  legal  tender  for  all  debts  between  people 
within  the  Province,  and  to  be  current  for  seven  years.* 

In  1764  the  Board  conferred  with  the  various  colonial 
agents  regarding  the  state  of  the  paper  currency  in  America, 
and  it  was  agreed  "  on  all  hands,  that  putting  a  stop  by  act 
of  Parliament  to  all  further  emission  as  legal  tender,  de- 
claring all  bills  now  existing  not  legal  tender  after  periods 
fixed  for  Redemption,  and  fixing  a  period  for  legality  of 
tender  for  those  having  no  fixed  period,  would  be  highly 
expedient  and  proper."  *  The  agents  asked  in  vain  that 
the  matter  be  delayed  until  they  could  consult  their  constit- 
uents. On  March  9,  1764,  the  Board  submitted  to  Parlia- 
ment an  elaborate  report  upon  paper  money  in  the  colonies. 
While  disclaiming  any  intention  of  conveying  censure  upon 
particular  colonies,  the  Board  stated  in  conclusion  that 
"complaints  lately  made  by  Merchants  of  the  principal  trad- 
ing cities  of  Great  Britain  of  the  prejudice  they  have  sus- 
tained ...  do  call  for  that  redress  from  Parliament,  which 
...  the  Crown  has  in  vain  endeavored  to  obtain  for  them 

1  A.  P.  C,  vol.  iv,  p.  347 ;  8  July,  1757- 

^  A.  P.  C,  vol.  iv,  p.  341 ;  16  June,  1758.    CO/5-1295,  p.  248. 

»  CO/5-674,  p.  198;  23  June,  1761. 

*  B.  T.  J.,  vol.  Ixxi,  pp.  57,  58,  60;  2  February,  1764. 


r 


/ 


124  REVIEW  OF  COLONIAL  LEGISLATION  [542 

by  its  own  authority."  ^  In  accordance  with  this  recom- 
mendation, Parliament  passed  an  act  which  declared  all 
laws  making  bills  legal  tender,  or  prolonging  the  legal  ten- 
der of  bills  already  issued,  to  be  void  after  September  i, 
1764.^  This  act  was  strictly  enforced  against  all  the  colo- 
nies, and  effectively  deprived  the  paper  currency  there  of 
its  worst  feature. 

In  dealing  with  the  problem  of  paper  money  the  Board 
found  itself  placed  squarely  between  two  opposing  sets  of 
interests,  those  of  the  debtor  class  predominant  in  the  colony 
and  its  assembly,  and  those  of  the  British  merchants.  The 
iatter  sought  redress  many  times  from  adverse  financial 
legislation,  in  the  great  majority  of  cases  with  success.  In 
spite  of  the  losses  they  sustained  because  of  paper  money, 
however,  the  merchants  conceded  the  necessity  of  its  use 
and  made  no  stand  for  its  abolition.  Their  complaints 
were  directed  in  almost  every  case  against  legal-tender  pro- 
visions, or  else  against  inadequate  measures  for  refunding 
\and  the  consequent  depreciation  of  the  bills.  In  several 
cases  the  merchants  even  exerted  their  influence  upon  the 
Board  in  favor  of  an  issue  under  proper  restrictions.  In 
1730  they  requested  that  the  governor  of  South  Carolina 
be  allowed  to  re-issue  one  hundred  thousand  pounds  for 
seven  years,  applying  the  proceeds  to  the  encouragement 
of  new  settlers.*  They  approved  an  issue  of  sixty  thousand 
pounds  under  stringent  regulations  in  Massachusetts;  and 
urged  the  confirmation  of  three  acts  from  New  Hampshire 
because  the  whole  sum  to  be  emitted  would  not  be  more 
than  was  "  absolutely  necessary  to  carry  on  the  trade  and 
business  of  the  Colony,'*  and  because  such  an  emission 

^  A.  P.  C,  vol.  iv,  Preface  xix. 

*  Statutes  at  Large,  1764,  chapter  34. 

•CO/5-361,  C,  63,  C.  64;  4  February,  1730. 


543]  POLICY  IN  REVIEW  I25 

would  be  the  best  means  to  prevent  the  use  of  the  base  cur- 
rency of  neighboring  colonies  as  a  medium  of  trade  there. ^  *  j^ 
Like  the  merchants,  the  Board  regarded  paper  currency             .'  ^  f 
with  dislike  and  apprehension,  as  a  necessary  evil  of  which              o/ 
t^e  best  must  be  made.     They  felt  the  colonists  to  be  mis- 
taken in  their  expectation  that  bills  of  credit  would  prove 
an  economic  panacea,  and  believed  that  in  permitting  their 
issue  only  under  stringent  restrictions  and  careful  regula- 
tions, they  were  advancing  the  true  interests  riot  only  of 
British  traders,  but  of  the  colonies  as  well. 

I  Conflict  between  the  interests  of  English  merchant  cred- 
itors and  of  colonial  debtors  resulted  also  from  the  enact- 

'  ment  of  laws  which  regulated  and  sometimes  impeded  the 
collection  of  debts.  In  this  case  the  Board  of  Trade,  always 
solicitous  for  the  security  of  private  property  and  mindful 
that  a  sound  credit  was  requisite  as  a  basis  for  the  planta- 
tion trade,  regarded  the  creditor's  right  of  recovery  as  axio- 
matic, and  conceded  very  little  to  colonial  sentiment.  Mas- 
sachusetts in  1757,  and  Virginia  in  1762,  passed  elaborate 
bankruptcy  acts  which  allowed  debtors,  voluntarily  confess- 
ing themselves  insolvent  and  surrendering  their  assets,  ex- 
emption from  imprisonment  and  a  certain  percentage  of 
the  proceeds  from  the  disposal  of  their  property.  The 
Board  acknowledged  the  beneficial  intent  and  inherent  jus- 
tice of  these  laws,  but  insisted,  nevertheless,  upon  their 
disallowance  because  of  fear  that  their  operation  by  colo- 
nials would  surely  work  injustice  to  absent  English  cred- 
itors. "  Upon  the  whole,"  says  the  Board's  representation 
upon  the  Massachusetts  act,  "  a  bankrupt  law,  even  though 
just  and  equitable  in  abstract  principle,  has  always  been 
found  in  its  execution  to  afford  opportunities  for  fraudu- 

1  CO/5-917,  p.  259;  II  April,  1739.  CO/5-925,  A,  11;  26  November, 
1742.  The  merchants  took  a  similar  position  regarding  two  acts  of 
Pennsylvania.    B.  T.  J.,  vol.  xlviii,  p.  26;  18  March,  1740. 


126  REVIEW  OF  COLONIAL  LEGISLATION  [544 

lent  practice.  And  even  in  this  country  where  in  most 
cases  all  creditors  are  resident  on  the  spot,  it  may  well  be 
doubted  whether  the  fair  trader  does  not  receive  more 
detriment  than  benefit  from  such  a  law.  But  in  a  Colony 
where  not  above  one  tenth  of  the  Creditors  are  resident, 
and  where  that  small  proportion  of  the  whole,  both  in 
money  and  in  value,  might  (as  under  this  act),  upon  a 
commission  being  issued,  get  possession  of  the  bankrupt's 
effects  and  proceed  to  make  a  dividend  before  English 
merchants  could  ever  be  informed  of  bankruptcy,  such  a 
law  is  beneficial  to  a  small  part  of  the  Creditors  resident 
only."  ' 

Toward  acts  designed  to  relieve  debtors  who  were  already 
charged  in  execution  and  suffering  imprisonment,  and  who 
chose  to  surrender  their  property  for  the  benefit  of  cred- 
itors, the  Board  was  more  tolerant;  and  all  of  the  colonies 
passed  such  laws  from  time  to  time.  It  was  insisted,  how- 
ever, that  settlements  be  not  concluded  without  the  consent 
of  creditors  holding  at  least  the  major  part  in  value  of  the 
claims  presented,  and  that  insolvents  should  not  be  granted 
exemption  from  debts  which  they  might  contract  in  the 
future.^  Several  acts  providing  for  the  release  of  indi- 
vidual debtors  were  disallowed  because,  in  the  opinion  of 
the  Board,  the  process  of  liquidation  was  not  surrounded 
with  adequate  safeguards  for  protecting  the  interests  of 
creditors  against  fraud  and  concealment.     In  framing  an 

»  Regarding  "Bankrupts  and  their  Creditors."  CO/5-430,  p.  i.  A.  P. 
C,  vol.  iv,  p.  388 ;  Disallowed  28  July,  1758.  Acts  and  Resolves,  vol.  iv, 
p.  29.  The  Virginia  law  "For  the  Relief  of  Insolvent  Debtors"  was 
disallowed  July  20,  1763.  A.  P.  C,  vol.  iv,  p.  563.  CO/5-1369,  P.  234. 
CO/5-1330,  Y,  84,  Y,  87.  Hening,  vol.  vii,  p.  549.  The  law  of  Vir- 
ginia was  more  objectionable  than  that  of  Massachusetts  in  that  it  did 
not  permit  debtors  to  be  petitioned  into  involuntary  bankruptcy. 

»  CO/s-379,  P.37.  CO/5-979,  p.  45-  ^0/5-1295,  p.  249.  C0/S'i277. 
Y,  3.    A.  P.  C,  vol.  V,  p.  311. 


545]  POLICY  IN  REVIEW  127 

act  of  New  Jersey,  for  example,  the  assembly  neglected  to 
make  the  notification  of  all  creditors  obligatory  upon  the 
trustees,  and  provided  merely  that  the  insolvent  should  lose 
the  benefit  of  the  law  if  he  secreted  any  part  of  his  estate — 
a  penalty  which  the  Board  deemed  "  much  too  light  and 
trivial  for  an  offence  commonly  enacted  a  felony."  ^  In 
like  manner  an  act  of  St.  Vincent  was  annulled  because  it 
allowed  two  prisoners  for  debt  full  benefit  of  the  English 
bankruptcy  laws,  without  subjecting  them  to  the  penalties 
contained  in  those  laws,  in  case  they  should  not  in  good 
faith  comply  with  them.^ 

Most  of  the  objections  made  to  debtor  legislation  had  to 
do  with  provisions  which,  under  the  guise  of  uniformity, 
did  in  fact  impose  particular  obstacles  to  a  just  recovery 
by  English  creditors.  Many  acts  discriminated  against  the 
British  merchants  by  so  fixing  the  time  for  the  final  settle- 
ment of  insolvent  estates  that  they  were  not  allowed  a  suffi- 
cient period  for  presenting  and  proving  their  claims.  The 
Virginia  bankruptcy  law  of  1762  provided  that  the  effects 
X>i  insolvents  should  be  sold  at  auction  within  three  months 
after  the  assignment,  and  a  final  dividend  declared  within 
eighteen  months.^  An  act  passed  by  North  Carolina  in 
1773  was  disallowed  because  it  allowed  only  sixty  days 
between  the  appointment  of  commissioners  and  the  exam- 
ination of  creditors,  and  permitted  no  further  delay  for 
absent  persons :  and  a  law  of  Antigua,  which  was  annulled 
"for  the  sake  of  precedent,"  though  it  had  probably  taken 
effect,  provided  that  the  entire  estates  of  two  insolvents 
should  be  applied  in  payment  of  executions  already  in  the 

1  An  act  of  New  Jersey  "  For  the  Relief  of  Francis  Goelet."  CO/5- 
999,  p.  125 ;  Disallowed  2  January,  1762. 

'  "  Relief  of  John  Earls  and  Robert  Hunter,"  A.  P.  C,  vol.  v,  p.  364  ; 
7  April,  1773. 

» CO/5-1369,  p.  234. 


128  REVIEW  OF  COLONIAL  LEGISLATION  [546 

hands  of  the  provost  marshal/  Some  months  notice  of 
distribution  and  eighteen  months  to  make  the  distribution 
in,  the  Board  stated,  would  be  fair  to  British  creditors.* 
But  it  is  doubtful,  to  say  the  least,  whether  a  delay  of  two 
years,  or  more,  between  the  insolvency  of  a  debtor  and  the 
declaration  of  a  dividend  would  have  been  satisfactory  in 
all  cases  to  colonial  creditors. 

In  addition  to  bankruptcy  legislation,  the  assemblies  pre- 
sumed to  regulate  the  collection  of  debts  in  ways  detri- 
mental to  the  interests  of  the  English  merchants.  Especi- 
ally objectionable  were  provisions  compelling  the  accept- 
ance in  payment  for  debts  of  commodities  of  uncertain 
value,  or  of  depreciated  currency  at  an  unduly  low  rate  of 
exchange.  An  act  of  Virginia  for  the  "  Encouragement 
of  Manufactures  "  was  held  objectionable  because  it  pro- 
vided that  for  all  debts,  contracted  in  money  or  tobacco, 
the  debtor  could,  upon  taking  oath  as  to  his  substance  (in 
money  or  tobacco),  tender  the  same  in  payment  and  the 
residue  in  certain  commodities.^  Notwithstanding  the  fact 
that  the  depreciation  of  paper  currency  had  advanced  the 
rate  of  exchange  to  forty  per  cent,  it  required  more  than  ten 
years  of  urgence  from  the  Board  of  Trade  to  secure  the 
amendment  of  a  Virginia  law,  inadvertently  confirmed,  by 
which  the  tender  of  paper  at  twenty-five  per  cent  was  made 
a  legal  discharge  for  sterling  debts.*    Declaring  it  "unjust 

1  A.  P.  C,  vol.  V,  p.  396;  I  June,  1774.  A.  P.  C,  vol.  v,  p.  313;  15 
January,  1772. 

^A.  P.  C,  vol.  V,  p.  311. 

•  CO/s-1358,  p.  162.  A  report  of  the  commissioners  of  the  customs, 
15  March,  1692. 

*A.  P.  C,  vol.  iv,  p.  389.  The  order  in  council  stated  that  "though 
the  Courts  find  means  by  way  of  damages  to  decree  the  whole  amount 
of  the  debt  according  to  the  actual  value  of  it  in  sterling,  yet  in  cases 
of  executorship  where  minors  are  concerned  the  Courts  are  under  the 
necessity  of  adhering  to  the  letter  of  the  law." 


547]  POLICY  IN  REVIEW  1 29 

to  enact  that  Debts  already  contracted  shal]  be  hereafter 
discharged  according  to  an  accidental  rate  of  exchange," 
the  Council  disallowed  a  Jamaica  act  which  fixed  an  arbi- 
trary rate  of  forty  per  cent/ 

Equally  objectionable  and  even  more  discriminatory 
against  English  creditors  were  the  offers  of  exemption  from 
arrest  for  previous  debts,  made  by  some  of  the  frontier 
colonies  for  the  purpose  of  hastening  settlement.  An  early 
act  of  Virginia  was  disallowed  because  it  barred  British 
creditors  from  recovery  unless  the  debtor  had  carried  over 
to  the  colony  effects  to  the  value  of  his  debts ;  ^  and,  as  well, 
a  South  Carolina  law,  which  by  granting  a  five-year  ex- 
emption from  arrest  to  all  newcomers,  enabled  certain  "evil 
persons  "  from  other  colonies  to  "  live  in  great  splendor 
and  influence  on  the  property  of  their  Creditors."  *  A  sub- 
sequent law  of  Georgia  which  granted  a  similar  exemp- 
tion of  seven  years,  excepted  amounts  owing  in  Great 
Britain,  but  it  was  disallowed,  nevertheless,  on  the  ground 
that  the  establishment  of  an  asylum  for  the  protection  of 
debtors  against  lawful  creditors  appeared  "  inconsistent 
with  the  principles  of  justice,  as  well  as  of  good  policy."  * 

The  government  objected  also  to  laws  insuring  a  prior- 
ity in  the  payment  of  local  debts.  An  act  of  North  Caro- 
lina which  provided  that  no  foreign  debts,  not  even  except- 
ing those  due  the  crown,    should   have  executions  until 

^  A.  P.  C,  vol.  iv,  p.  455. 

'  This  act  for  regulating  the  collection  of  foreign  debts,  was  passed 
in  1663  and  disallowed  in  February,  1718.  CO/5-1318,  p.  106.  CO/s- 
1365,  pp.  36-38,  46-47.    B.  T.  J.,  vol.  xxvii,  p.  121. 

'  CO/S-Z62,  D,  64.  B,  T,  J.,  vol.  xliii,  p.  2.  A.  P.  C,  vol.  iii,  p.  395; 
3  April,  1734. 

*  CO/5-646,  C.  8.  CO/5-676,  C,  6z.  A.  P.  C,  vol.  iv,  p.  408;  3  March, 
1759.  In  1707  the  Board  reported  to  the  same  effect  upon  a  similar  act 
of  South  Carolina.     CO/5-1292,  p.  17. 


130  REVIEW  OF  COLONIAL  LEGISLATION  [548 

amounts  owed  in  the  colony  at  the  time  of  the  suit  had 
been  paid,  was  characterized  by  the  merchants  of  London 
as  "  unjust,  illegal,  and  a  bare-faced  fraud,"  and  was  an- 
nulled as  "  contrary  to  reason,  inconsistent  with  the  laws, 
and  greatly  prejudicial  to  the  interests  of  this  Kingdom,"  ^ 
Two  Pennsylvania  laws  of  similar  intent  were  condemned 
with  a  declaration  that  all  "Creditors  should  stand  on  the 
same  foot  as  to  recovery."  ^  The  Board  objected,  however, 
to  any  imposition  of  equality  among  creditors  after  legal 
proceedings  for  the  collection  of  a  debt  had  begun.  A  pri- 
vate act  of  Jamaica  providing  for  the  sale  of  an  infant's 
estates  to  pay  the  father's  debts,  was  annulled  because  it 
stipulated  that  the  money  thus  obtained  should  be  applied 
"  in  equal  shares  and  Proportions,"  whereas  it  should  have 
directed  that  all  debts  be  paid  "  according  to  the  several 
Degrees  and  Priority  and  to  the  usual  and  due  Course  of 
Law,"  thus  preserving  the  legal  priority  of  judgment  and 
bond  creditors.^  A  like  objection  proved  fatal  to  an  act  of 
New  Hampshire  which  provided  for  an  equal  distribution 
among  creditors  of  insolvent  intestate's  estates  "  without 
regard  to  the  nature  of  the  debts."  * 

In  several  instances  acts  providing  for  a  speedy  recovery 
of  debts  were  objected  to  because  they  endowed  with  a 
final  and  exclusive  jurisdiction,  courts  which  the  Board 
feared  would  prove  partial  or  incompetent.  When  Antigua 
attempted  to  establish  a  court  like  that  of  London  for  hold- 
ing pleas  of  foreign  attachments,  the  act  was  disallowed 

*  This  act  "  Regarding  Attornies  from  Foreign  Parts  and  giving 
Priority  to  Country  Debts,"  was  passed  in  1715  by  the  proprietary  gov- 
ernment and  disallowed  in  August,  1747.  CO/5-296,  B,  71,  B,  73.  CO/ 
S-323,  p.  303.    A.  P.  C,  vol.  iv,  p.  43. 

2  Pa.  Stats.,  vol.  ii,  ch.  52,  p.  63.   CO/5-1263,  N,  40.   Stats.,  vol.  ii,  ch. 
176,  p.  364.    CO/5-1264,  Q,  37- 
*A.  P.  C,  voL  V,  p.  165;  12  August,  1768. 

*  CO/5-912,  pp.  156,  186,  210. 


549]  POLICY  IN  REVIEW  131 

Upon  the  ground  that  it  would  "  occasion  many  inconveni- 
ences in  commerce,"  and  might  "discourage  British  mer- 
chants from  giving  credit  to  persons  residing  "  there.  ^  An 
act  of  South  Carohna  which  gave  two  justices  and  three 
freeholders  final  jurisdiction  over  all  actions  of  debt  what- 
soever not  exceeding  twelve  pounds  sterling,  was  disallowed 
because  the  sum  named  was  "  too  large  to  be  determined 
in  so  summary  a  way."  ^  At  the  earnest  solicitation  of  the 
governor,  a  Georgia  law  "  For  the  Easy  and  speedy  Re- 
covery of  Small  Debts  "  which  established  a  court  for  the 
trial  of  actions  not  exceeding  eight  pounds  sterling,  was 
allowed  to  lie  by  "  until  the  Colony  is  in  a  situation  to 
admit  of  more  constitutional  and  less  exceptionable  Regu- 
lations for  the  attainment  of  so  desirable  an  end."  * 

The  Board  regarded  with  disfavor  laws  which  preju- 
diced creditors  by  setting  a  time-limit  to  the  validity  of 
certain  debts.  Such  was  an  act  of  Antigua  which  extended 
the  statute  of  limitations  to  judgments,  a  provision  which 
could  only  "  operate  in  favor  of  the  careless  or  ignorant 
Debtor  "  and  might  defeat  the  just  creditor.*  Similar  ob- 
jection was  taken  to  a  Massachusetts  law  which  barred 
action  for  debts  on  account  after  the  expiration  of  two 
years  from  the  contracting  thereof ;  and  to  an  act  of  North 
Carolina  which  decreed  that  no  real  estate  should  be  liable 
for  the  payment  of  debts  unless  suit  was  brought  within 
five  years  after  the  passage  of  the  act,  or  the  death  of  the 
alleged  debtor.  ** 

1  A.  P.  C,  vol.  iii,  p.  180;  23  November,  1728. 

^  A.  P.  C,  vol.  iv,  p.  59;  4  May,  1748.    The  law  was  liable  to  other 
objections  as  well. 
»  CO/5-648,  E,  25.    B.  T.  /.,  vol.  Ixviii,  p.  281. 
*  A.  P.  C,  vol.  iv,  p.  412;  29  March,  1759. 

»  B.  T.  J.,  vol.  xxviii,  p.  256.  CO/5-91 5,  p.  285.  A.  P.  C,  vol.  v,  p. 
39;  26  June,  1767. 


132  REVIEW  OF  COLONIAL  LEGISLATION  [550 

In  a  few  cases  laws  were  condemned  because  they  ap- 
peared grossly  unfair  or  excessively  burdensome  either  to 
the  debtor  or  the  creditor.  A  Maryland  act  of  1704  pro- 
vided that  the  deposition  of  a  witness  before  a  notary, 
made  in  any  foreign  part  without  notice  to  the  debtor, 
should  be  evidence  to  prove  any  debt  against  an  inhabitant 
within  the  province.  A  deposition,  the  attorney  general 
objected,  should  not  be  allowed  as  evidence  when  the  op- 
posing party  could  not  cross-examine,  and  was  without 
previous  notice  of  the  claim. ^  Upon  the  other  hand,  the 
Board  rejected,  as  an  undue  hardship  upon  the  creditor,  a 
Maryland  act  which  required  him,  when  summoned,  to  ap- 
pear and  show  cause  why  his  debtor,  having  taken  oath  to 
the  possession  of  no  estate  exceeding  five  pounds  sterling, 
should  not  be  discharged,  and  to  furnish  security  for  the 
debtor's  further  maintenance  in  prison.  For  failure  to 
respond,  the  creditor  was  liable  to  a  fine  of  ten  pounds 
sterling,  and  if  he  failed  to  establish  a  case  the  debtor  was 
to  be  released  at  the  expiration  of  sixty  days.^  In  behalf 
of  creditors'  heirs,  the  Board  urged  the  modification  of  a 
Massachusetts  law  which  compelled  the  creditor  to  accept 
a  life  interest  in  land  as  a  full  discharge  of  an  execution 
for  debt.« 

The  government  permitted  acts  making  lands  and  tene- 
ments liable  for  the  payment  of  debts,  provided  they  were 
in  essential  particulars  conformable  to  the  law  of  England 
upon  the  subject.*  From  time  to  time,  however,  many 
colonies  passed  laws  making  the  property  of  absentee  deb- 

1  CO/5-716,  H,  48 ;  12  November,  1707. 

'  CO/5-727,  p.  132.  B.  T.  J.,  vol.  xxi,  p.  244.  This  law  "  For  the  re- 
lief of  Poor  Debtors"  was  passed  in  December,  1708,  and  disallowed 
October  18,  1709. 

•  CO/5-915,  pp.  168-170,  276.    B.  T.  /.,  vol.  xxvii,  p.  348;  4  June,  1719. 

*  CO/5-300,  F,  4.    A.  P.  C,  vol.  V,  p.  38 ;  26  June,  1767. 


551]  POLICY  IN  REVIEW  I33 

tors  liable  for  the  pa)nTient  of  colonial  debts.  To  these  the 
Board  objected,  except  in  so  far  as  they  were  aimed  against 
debtors  who,  having  dwelt  in  the  colonies,  had  absconded 
to  avoid  payment.  Such  laws,  administered  by  colonials, 
it  was  complained,  deprived  the  English  debtor  of  the  op- 
portunity for  a  fair  defense  and  left  him  exposed  to  fic- 
titious claims — a  proceeding  "  contrary  to  the  principles  of 
English  law  and  highly  dangerous  to  commerce."  ^  Their 
prevalence  led,  in  177 1,  to  a  general  instruction  forbidding 
the  governors  to  assent  to  any  law  by  which  the  property, 
real  or  personal,  of  any  persons  who  had  never  resided 
within  the  colony  should  be  made  liable  for  the  recovery 
of  debts.  ^  Upon  the  other  hand,  instructions  to  the  gov- 
ernors urged,  apparently  without  much  success,  the  passage 
of  laws  whereby  creditors  of  English  bankrupts  having 
estates  in  the  colonies,  could  be  satisfied  for  the  debts  owing 
to  them.^ 

In  August,  1 73 1,  several  merchants  of  London  petitioned 
the  crown  for  relief  from  colonial  acts  which  impeded  the 
collection  of  their  debts  or  placed  them  at  a  disadvantage 
in  the  payment  of  duties.  They  complained  that  as  the 
laws  stood  in  some  of  the  plantations,  his  majesty's  sub- 
jects residing  in  England  were  unable  to  recover  just  debts, 
or  had  "  such  remedy  only  as  was  very  partial  and  pre- 
carious." *  After  a  protracted  hearing,  the  Board  reported 
in  the  following  January,  that  while  several  laws  upon  the 
subject  were  unreasonable,  they  were  of  long  standing,  had 
never  been  complained  of  before,  and  might  properly  lie 

^  A.  P.  C,  vol.  V,  pp.  312,  314,  390.    CO/5-1078,  p.  206. 
'  CO/5-999,  p.  243.    B.  T.  J.,  vol.  Ixxix,  p.  12.    A.  P.  C,  vol.  v,  p.  320. 
3  Commission  to  Dudley,  CO/5-910,  p.  33;  11  December,  1701.     CO/ 
S-726,  p.  177.     Board  to  Gooch,  CO/5-1366,  p.  3;  16  February,  1728. 

♦  B.  T.  J.,  vol.  xl,  p.  221. 


134  REVIEW  OF  COLONIAL  LEGISLATION  [552 

by  for  the  present/  Apparently  both  the  merchants  and 
the  Board  had  in  view  the  possibility  of  interposition  by 
Parliament,  for  on  November  24th  the  merchants  had 
stated  that  "  all  they  desired  was  an  act  to  be  passed  here 
to  enable  them  to  recover  their  debts  in  the  Plantations." 
Shortly  after  each  house  of  Parliament  requested  copies 
of  the  merchants'  petition  and  the  Board's  report  thereon. 
There  followed  the  enactment  by  Parliament  of  a  law 
tending  "  to  revive  the  Credit  .  .  .  formerly  given  by  the 
trading  subjects  of  Great  Britain  to  the  Natives  ...  of 
the  Plantations,  and  to  the  advancing  of  the  trade  of  this 
Kingdom  thither."  It  provided  that  thenceforth,  in  any 
action  or  suit  in  the  Plantations  regarding  a  debt,  wherein 
a  resident  of  Great  Britain  should  be  a  party,  he  as  plain- 
tiff, defendant  or  witness  might  make  an  affidavit  in  writ- 
ing, upon  oath  or  affirmation,  before  a  magistrate.  This, 
when  transmitted  to  the  colony  under  the  seal  of  a  city, 
borough  or  township,  was  to  have  the  same  force  as  though 
made  in  open  court.  The  act  also  declared  lands,  tenements 
and  negroes  owned  by  Plantation  debtors,  liable  for  the 
payment  of  debts,  in  like  manner  as  these  properties  were 
liable  in  England,  and  made  them  subject  to  the  same  reme- 
dies and  proceedings  in  colonial  courts  as  though  they  were 
personal  estates.^ 

The  provision  that  slaves  should  be  regarded  as  chattels 
when  used  as  security  for  debts,  was  a  departure  from  the 
traditional  British  policy  which  annexed  them  to  the  soil 
in  colonies  dependent  upon  their  labor.  ^  But  the  fact  that 
as  real  property  they  were  often  entailed,  or  settled  for  life 
with  a  remainder  over,  injured  their  usefulness  as  a  secur- 

» B.  T.  J.,  vol.  xli,  p.  27. 

'  Pickering,  Statutes,  vol.  xvi,  p.  272,  ch.  7 ;  1732. 

•  CO/5-1368,  p.  226. 


553]  POLICY  IN  REVIEW  135 

ity,  and  caused  Virginia  in  1728  to  anticipate  the  act  of 
Parliament  in  making  them  personal  for  the  payment  of 
debts/  In  1740  South  Carolina  passed  an  act  declaring 
slaves  personal  property  in  all  respects,  and  as  such,  pre- 
sumably subject  to  division  among  the  children  upon  the 
settlement  of  an  estate.  The  king's  counsel  called  the 
Board's  attention  to  the  fact  that  this  was  inconsistent  with 
the  laws  of  other  colonies  and  with  the  act  of  Parliament, 
and  recommended  that  the  law  be  disallowed.^  But  noth- 
ing was  done  and  it  remained  in  operation.  Meanwhile 
Virginia  found  her  compromise,  by  virtue  of  which  slaves 
were  personal  as  security  for  debts  but  real  as  to  inheri- 
tance, unsatisfactory.  The  fact  that  a  sale  for  the  debts  of 
a  tenant  in  tail  served  to  bar  the  entail,  resulted  in  many 
suits.  When  the  land  became  overstocked,  slaves  held  in 
tail  were  a  manifest  prejudice  to  the  tenant;  while  their 
intermarriage  with  those  held  in  fee  simple  caused  great 
confusion  as  to  title. ^  Consequently  the  assembly  made 
two  attempts,  both  defeated  by  the  Privy  Council,  to  follow 
the  example  of  South  Carolina  in  making  slaves  personal.* 
In  1767  a  similar  act  of  Georgia  was  disallowed,  upon  the 
ground  that  slaves  were  a  necessary  part  of  the  plantations, 
which  might  become  valueless  to  the  heir,  and  suffer 
neglect  if  they  were  separated  from  the  land.*^  But  Gov- 
ernor Wright  refused  to  accept  this  reasoning  as  conclu- 
sive. He  wrote  to  Hillsborough,  citing  the  act  of  Parlia- 
ment to  show  that  it  was  the  obvious  intention  to  make 

1  CO/5-1326,  V,  60;  10  January,  1729. 

2  Report  of  Lamb,  CO/5-372,  I,  43 ;  2  November,  1748. 

'A  memorial  of  the  Council  and  Burgesses,  CO/5-1327,  W,  90;  21 
December,  1752. 

*  A.  P.  C,  vol.  iv,  p.  138;  1751.    CO/5-1368,  p.  226;  6  May,  1763. 

»  A.  P.  C,  vol.  V,  p.  40;  26  June,  1767. 


136  REVIEW  OF  COLONIAL  LEGISLATION  [554 

both  lands  and  negroes  personal  for  the  payment  of  debts, 
and  mentioning  the  fact  that  South  Carolina  had  long  en- 
joyed a  law  similar  to  that  desired  by  Georgia/  As  a  re- 
sult, the  Board  yielded,  and  Georgia  was  permitted  to  pass 
a  law  making  slaves  personal,  "  especially  as  it  would  be 
conformable  to  the  act  [of  Parliament]  for  the  more  easy 
recovery  of  debts  in  the  Plantations."  ^  We  may  conclude, 
therefore,  that  because  slaves  were  used  extensively  in 
some  colonies  as  a  basis  for  credit,  the  government  agreed 
with  the  English  merchants  that  they  should  be  subject  to 
attachments  and  executions  for  the  payment  of  debts;  but 
that  it  consented  only  with  manifest  reluctance  to  any 
change  in  their  status  which  might  decrease  the  value  of 
lands  and  prove  detrimental  to  the  pursuit  of  agriculture. 

The  regulation  of  exchange  rates  upon  foreign  coins 
was  another  phase  of  colonial  finance  which  provoked  the 
interposition  of  Parliament.  Because  the  colonies  had  no 
mints,  and  because  their  imports  from  England  exceeded 
their  exports,  they  were  continually  being  drained  of  coin 
and  were  unable  to  keep  a  supply  sufficient  for  the  ordi- 
nary needs  of  trade.  To  meet  the  difficulty,  the  assemblies 
ascribed  to  the  various  English  and  foreign  coins  values 
somewhat  greater  than  their  intrinsic  worth  would  war- 
rant, in  order  that  bullion  and  coin  might  be  drawn  from 
\  the  other  colonies  or  the  West  Indies  and  kept  from  ex- 
}  portation.  But  this  expedient  conflicted,  not  only  with  a 
;•  well-founded  belief  in  England  that  the  best  interests  of 
I  British  commerce  demanded  a  uniform  value  upon  coins 
throughout  the  colonies,  but  also  with  the  common  mer- 
cantilist idea  that  the  commercial  welfare  of  the  mother 
country  depended  upon  the  importation  of  specie,  resulting 


V 


1  CO/5-650,  p.  155;  5  October,  1768. 

*  A.  P.  C,  vol.  V,  p.  176;  6  March,  1769. 


i: 


555]  POLICY  IN  REVIEW  137 

from  a  favorable  balance  of  trade/  Accordingly  in  1703 
/the  crown  issued  a  proclamation  fixing  the  values  of  coins 
in  the  plantations,  and  soon  after  Parliament  passed  an  act 
for  the  same  purpose.^  This  manner  of  regulation  proved 
,  an  effective  check  upon  the  colonies,  because  laws  whose 
^  J  provisions  were  deemed  in  conflict  with  an  act  of  Parlia- 
\  ment  could  be  disallowed  forthwith.  That  it  failed  to 
I  afford  a  satisfactory  solution  of  the  difficulty  from  the 
I  point  of  view  of  the  colonies,  is  obvious  from  their  fre- 
f  quent  and  repeated  complaints  concerning  the  lack  of  a 
circulating  medium,  and  by  the  fact  that  at  one  time  or 
another  almost  every  colony  passed  a  law  which  was  dis- 
allowed because  it  conflicted  with  the  established  rates.* 
/Pennsylvania  and  South  Carolina  made  ingenious  but  vain 
/  attempts  to  obtain  their  own  pleasure  by  indirection.  The 
!  former  passed  an  act  providing  that  the  prices  of  all  goods 
\  should  be  computed  at  three-forths  the  sum  which  the 

^*^eport  of  the  Lord  High  Treasurer,  CO/5-323,  G,  i ;  10  May,  1704. 

l/^.  T.  J,,  vol.  XX,  p.  138 ;  14  May,  1708. 

^^uch  were :  an  act  of  New  York  "  Regulating  Current  Coin,"  which 
was  passed  in  October,  1708,  and  disallowed  March  3,  1709;  N.  Y.  Col. 
Docs.,  vol.  V,  p.  67 ;  an  act  of  South  Carolina,  which  was  open  to  other 
objections,  as  well,  was  disallowed  in  1754,  A.  P.  C,  vol.  iv,  p.  211 ;  an 
act  of  Jamaica  for  "  Ascertaining  the  Value  of  Spanish  Milled  Money" 
was  disallowed  May  20,  1760,  A.  P.  C,  vol.  iv,  p.  450.  An  act  of  New 
Hampshire,  "  Ascertaining  the  Value  of  Coined  Silver  and  Gold,"  was 
disallowed  August  12,  1768,  A.  P.  C,  vol.  v,  p.  159;  and  a  law  of 
North  Carolina  "  To  Encourage  the  Importation  of  British  Coppe- 
Half  Pence"  on  June  7,  1771,  A.  P.  C,  vol.  v,  p.  308.  An  act  of  Penn- 
sylvania was  annulled  just  prior  to  the  promulgation  of  the  royal 
proclamation,  A.  P.  C,  vol.  ii,  p.  441.    CO/5-1262,  L,  46. 

A  Massachusetts  act  upon  the  subject  had  been  confirmed,  and  in 
accordance  with  an  opinion  from  the  attorney  general,  remained  in 
force  despite  the  royal  proclamation.  But  after  the  passing  of  the  act 
by  Parliament,  the  provincial  courts,  at  least,  appear  to  have  followed 
the  values  prescribed  therein.  CO/5-323,  F,  14.  CO/5-913,  p.  285;  29 
January,  171 1. 


138  REVIEW  OF  COLONIAL  LEGISLATION  [556 

vender  would  have  taken  for  them  had  no  change  been 
made  in  the  currency  by  act  of  Parliament ;  while  the  latter 
allowed  a  rebate  of  ten  per  cent  upon  all  duties  paid  in  gold 
or  silver.^ 

l«^CO/5-i264,  Q,  39,  Q,  42;  20  February,  1714.  A.  P.  C,  vol.  iii,  p. 
553. 


CHAPTER  V 

The  Policy  of  the  British  Government  in  Legisla- 
tive Review  :  Insistence  upon  Conformity  to 
THE  Law  of  England 

/In  addition  to  the  requirement  that  colonial  legislation 
/conform  to  the  economic  aims  and  policies  of  the  Empire, 
i  the  government  insisted,  in  the  language  of  its  grants  and 
charters,  that  laws  be  not  repugnant,  but  as  nearly  as  might 
be  conformable  to  those  of  England.  This  wording  im- 
posed no  particular  laws,  not  even  the  common  law,  upon 
the  colonies,^  while  its  indefiniteness  permitted  both  the 
colonists  and  the  mother  country  a  wide  discretion  in  judg- 
ing what  the  law  of  England  upon  any  particular  subject 
might  be,  and  what  deviations  from  strict  conformity 
should  be  deemed  advisable  because  of  social  and  economic 
differences.  For  the  government  realized  the  absurdity  of 
forcing  the  polity  of  a  long-established  community  upon 
newly-settled  colonies  where  conditions  of  life  were  primi- 
tive, and  permitted,  from  the  first,  the  enactment  of  legis- 
lation founded  upon  local  usages  and  customs  which  dif- 
fered from  those  of  England.^  Indeed,  attempts  of  the 
assemblies  to  re-enact  English  statutes,  or  to  declare  the 

1  The  charter  granted  by  Charles  II  to  Pennsylvania  required  that 
laws  of  property  and  crimes  should  be  the  same  as  in  England,  until 
altered  by  the  Proprietor.  Reinsch,  "  English  Common  Law  in  the 
Early  American  Colonies,"  Select  Essays  in  Anglo-American  Legal 
History,  vol.  i,  p.  397.  But  in  no  other  case  was  a  presumption  of  iden- 
tity placed  upon  the  colonists. 

2  Report  of  the  committee  upon  the  laws  of  New  Hampshire,  C.  S. 
P.,  1681-5,  p.  174.  Report  of  Attorney  General  Harcourt  upon  acts  of 
Maryland,  CO/5-716,  H,  48;  September,  1707. 

557]  139 


I40  REVIEW  OF  COLONIAL  LEGISLATION  [558 

laws  of  England  wholly  or  partially  in  force,  were  dis- 
couraged, lest  they  operate  to  diminish  the  power  of  the 
executive  in  the  dominions,  or  to  deprive  the  crown  of  its 
right  to  veto  each  individual  enactment.  Attorney  Geaeral 
Trevor  objected  to  a  Maryland  law  which  included  the 
Magna  Carta,  upon  the  ground  that  it  might  conflict  with 
the  constitution  and  other  laws  of  the  province,  or  with 
the  royal  prerogative.^  Against  a  provision  in  the  bill  of 
rights  passed  by  the  first  assembly  of  New  York,  that  the 
province  should  be  "Governed  by  and  according  to  the 
Laws  of  England,"  the  committee  cited  the  fact  that  this 
privilege  had  not  been  granted  "  to  any  of  His  Majesty's 
Plantations,  where  the  act  of  habeas  corpus  and  all  such 
other  Bills  do  not  take  place."  ^  The  attorney  general  even 
took  exception  to  an  obscure  clause  empowering  justices  to 
"do  justice  according  to  the  Laws  of  England  and  Vir- 
ginia," lest  "  all  the  laws  of  England  be  enacted  there."  ' 
A  law  of  New  York  which  declared  the  extension  to  the 
colony  of  several  acts  of  Parliament  was  disallowed,  al- 
though it  introduced  nothing  in  itself  objectionable,  because 
it  did  not  seem  fitting  that  laws  should  "  be  adopted  in 
Cumuloy  and  that,  too,  without  stating  more  of  the  acts 
than  the  titles  and  sections  adopted.  [This]  deprives  both 
the  Crown  and  the  Governor  of  that  distinct  approbation 
or  disapprobation  that  is  essential  to  the  constitution  of  the 
Province,  .  .  .  and  would  occasion  great  difficulties  in  Con- 
struction, .  .  .  such  as  ought  not  to  be  left  to  Courts  of 
Justice."  * 

t*X.  6^  P.,  1693-6,  p.  627;  II  December,  1695. 

^N.  Y.  Col.  Docs.,  vol.  iii,  p.  357. 
*^'C>/5-i3i4,  L,  17;  IS  August,  1704. 

*  A.  P.  C,  vol.  V,  p.  285 ;  9  December,  1770.  A  similar  objection  was 
raised  against  several  acts  of  Jamaica  for  "  Declaring  the  Laws  of 
England  in  force,"  C.  S.  P.,  1677-80,  p.  67.  A.  P.  C,  vol.  ii,  p.  833. 
CO/5-725,  p.  436. 


559]  POLICY  IN  REVIEW  141 

In  other  cases  the  Council  deemed  the  adoption  of  Eng- 
lish statutes  inexpedient.  A  Pennsylvania  law  for  quar- 
tering soldiers  was  disallowed  because,  by  enacting  pro- 
visions from  an  act  of  Parliament  originally  passed  when 
the  army  was  maintained  without  the  consent  of  the  legis- 
lature, it  threatened  to  obstruct  the  defence  of  the  province ; 
and  New  York  was  forbidden  to  pass  a  law  for  "  Prevent- 
ing Disputes  by  the  Demise  of  the  Crown,"  because  it  was 
"  too  closely  modelled  on  English  laws  inapplicable  to  con- 
ditions in  the  Colonies."  ^ 

Although  generally  tolerant  of  mere  difference,  the  law 
/officers  and  the  Board  of  Trade  almost  invariably  con- 
demned acts  whose  provisions  they  deemed  inconsistent 
with  the  law  of  England.  In  the  interests  of  conformity 
they  demanded,  ( i )  a  certain  technical  perfection,  insisting 
that  legislation  be  passed  in  a  regular  manner  by  a  compe- 
tent law-making  body,  and  that  it  be  clearly  worded  and 
of  reasonable  intent.  Furthermore  they  required,  (2)  that 
acts  be  not  inconsistent  with  the  mandates  of  a  higher 
authority  or  with  a  more  fundamental  law,  such  as  the 
governor's  instructions,  the  charter  of  the  colony,  or  an 
act  of  Parliament;  and  that  there  be  no  falling  short  from 
such  standards  of  justice  and  equity  as  were  embodied  in 
\  the  jurisprudence  of  England. 

It  will  be  well,  perhaps,  to  consider  at  some  length  ob- 
jections offered  to  what  may  be  styled  the  technic  of  colo- 
nial laws.  Not  until  the  early  part  of  the  eighteenth  cen- 
tury was  there  any  considerable  number  of  trained  lawyers 
in  the  plantations.  Moreover,  the  prejudice  against  them 
was  so  strong  that  some  of  the  colonies  for  a  time  forbade 
their  acting  as  members  of  the  assemblies.  The  settlers, 
comparatively  few  of  whom  were  from  the  professional 

*  A.  p.  C,  vol.  iv,  p.  338;  7  July,  1756.    A.  P.  C,  vol.  iii,  Intro.,  xvi. 


142  REVIEW  OF  COLONIAL  LEGISLATION  [560 

tclass,  possessed  the  English  deference  to  custom  and  desire 
^^or  fair  play  rather  than  any  extensive  legal  knowledge, 
hus  isolated  and  confronted  with  new   conditions  and 
roblems,  they  based  their  first  codes,  in  the  Quaker  and 
uritan  colonies,  upon  the  word  of  God,  or  elsewhere,  upon 
ocal  custom  and  their  own  conception  of  justice  and  equity. 
/It  was  inevitable,  therefore,  that  when  trained  English  law- 
yers began  a  systematic  perusal  of  colonial  enactments  dur- 
ing the  latter  part  of  the  seventeenth  century,  they  should 
note  many  lapses  from  legal  perfection. 

The  most  common  complaint,  especially  during  this  early- 
period,  was  that  laws  were  vaguely  and  loosely  worded. 
The  Board  objected,  for  example,  to  the  use,  without  fur- 
ther specification,  of  the  phrases  "  enumerated  commodi- 
ties "  and  "  infectious  sickness  "  in  laws  of  Massachusetts, 
and  to  a  provision  that  a  certain  act  of  Parliament  should 
be  enforced  in  Pennsylvania  "  as  far  as  circumstances  per- 
mit."!^ This  fault  was,  if  possible,  even  more  objection- 
able in  criminal  legislation,  where  exception  was  taken  to 
such  phrases  as  "  Devilish  Practice,"  and  "  playing  at  cards, 
dice,  lotteries  or  such  like."  ^  An  act  of  New  Jersey  im- 
posed capital  punishment  upon  counterfeiters  of  foreign 
coin  which  was  "  by  common  consent  "  passed  as  full  satis- 
faction for  debts. ^  The  Board  complained  that  definitions 
of  crime  were  too  general,  that  they  often  contained  no 
clause  making  premeditation  or  intent  essential  to  convic- 
tion, and  that  they  afforded  judges  an  undue  discretion, 
which  was  liable  to  arbitrary  extension  and  abuse.*  Laws 
renewing  or  amending  other  laws,  or  adopting  acts  of  Par- 

^'C.  S.  P.,  1700,  pp.  475,  555.    Pa.  Stats.,  vol.  iii,  p.  465. 
*B.  T.  J.,  vol.  viii,  p.  16.    CO/S-1263,  N,  40. 
*N,  Y.  Col  Docs.,  vol.  V,  p.  46. 
*  A.  P.  C,  vol.  iv,  p.  73.    CO/S-1263,  N,  40. 


56l]  POLICY  IN  REVIEW  143 

liament  in  the  colonies,  sometimes  failed  to  cite  in  an  exact 
manner  the  precise  enactments,  or  parts  thereof,  to  which 
they  had  reference.  A  law  of  North  Carolina  altered  two 
former  acts  and  repealed  another  only  as  to  matters  "within 
the  perview"  of  itself/  Even  more  objectionable  was  an 
act  of  Maryland  which  vaguely  secured  the  rights  and  lib- 
erties of  the  inhabitants  according  to  the  laws  and  statutes 
of  England,  in  all  matters  concerning  which  the  legislation 
of  the  province  was  silent.^  In  some  cases  acts  were  so 
carelessly  framed  that  they  were  in  parts  inconsistent  or 
unintelligible.  The  king's  counsel  reported,  for  example, 
that  a  Massachusetts  law  which  made  lands  and  tenements 
liable  for  the  payment  of  debts,  was  so  unhappily  worded 
that  he  could  not  see  how,  "  by  any  construction  whatever, 
it  could  effect  the  end  proposed  by  it."  ^ 

In  other  instances  the  Board  condemned  laws  because 
they  appeared  to  be  unnecessary  and  trivial,  or  absurd  and 
unreasonable.  To  a  Pennsylvania  act  for  regulating  the 
names  of  days  and  months,  it  was  objected  that  "  every 
man  may  call  [them]  as  he  pleases."  *  Another  law  of 
Pennsylvania  made  persons  guilty  of  bearing  false  witness 
liable  to  the  same  penalty  which  persons  against  whom  they 
testified  would  have  suffered,  if  convicted.^  Massachusetts 
attempted  to  award,  in  certain  cases,  the  full  penalty  pre- 
scribed by  a  bond,  without  recourse  to  chancery — ^an  exclu- 

1  CO/5-299,  E,  50. 

»  Act  for  "  The  Service  of  God."  CO/5-725,  P-  I79- 
'  Acts  and  Resolves,  vol.  ii,  67,  ch.  3.  A  similar  criticism  was  made 
against  an  act  of  South  Carolina  for  issuing  bills  of  credit,  CO/5-402, 
p.  158;  December,  1748.  Board  to  the  Governor  of  the  Leeward 
Islands,  C.  S.  P.,  1700,  p.  736.  Comment  of  Bellomont  upon  laws 
transmitted,  C.  S.  P.,  1700,  p.  529. 

*  Pa.  Stats.,  vol.  i,  p.  464. 
»  CO/5-1263,  N,  40. 


144  REVIEW  OF  COLONIAL  LEGISLATION  [562 

sion  of  equity  in  express  words  which  the  Board  charac- 
terized as  absurd ;  ^  while  Maryland  required  masters  of 
vessels  importing  convicts  to  bring  a  transcript  of  their 
conviction  under  seal  of  the  court,  something  which,  in 
England,  they  had  no  authority  to  obtain.^ 

Penalties  imposed  by  criminal  legislation  were  in  many 
cases  excessively  severe.  This  was  particularly  true  of 
early  legislation  in  the  Puritan  colonies  and  in  Pennsyl- 
vania, where  offences  were  made  capital  in  accordance  with 
the  word  of  God.  "If  by  the  word  is  ment  the  Mosaical 
law,"  says  an  early  report  upon  Massachusetts  laws,  "  the 
patent  will  not  in  many  instances  be  fit  to  be  followed  by 
Christians,  for  example,  to  make  it  death  to  gather  sticks 
on  the  Sabbath  and  many  others."  ^  In  a  report  upon  acts 
of  Pennsylvania,  Attorney  General  Northey  objected  to 
castration  as  a  penalty  "  never  inflicted  by  any  law  in  His 
Majesty's  dominions,"  and  to  making  fraudulent  taking  a 
felony,  when  it  was  not  regarded  as  such  in  England.*  A 
New  York  act  for  "  Regulating  Fees  "  was  disallowed  be- 
cause of  several  objectionable  features,  one  of  which  was 
the  perpetual  disbarment  of  lawyers  violating  its  provisions, 
although  the  duration  of  the  act  itself  was  but  three  years.® 
.Acts  whose  provisions  were  in  any  way  retrospective 
were  condemned  as  bad  law.  Within  this  category  fall  an 
act  of  Antigua,  passed  after  a  crime  had  been  committed 
in  order  that  slaves  might  testify  against  the  supposed 
offenders;*  a  law  of  Georgia  which  rendered  void  deeds, 

*  Acts  and  Resolves,  vol.  ii,  p.  129;  20  May,  1725.    Antigua,  A.  P.  C, 
vol.  V,  p.  364 ;  1773. 

»  CO/5-1278,  Z,  8;  June,  1771. 

'  C.  S.  P.,  1677-80,  p.  139 ;  2  August,  1677. 
*^  CO/5-1263,  N,  40;  13  October,  1704. 
^' CO/5-1121,  p.  455;  November,  1709. 

•  A.  P.  C,  vol.  iii,  p.  612;  30  November,  1738, 


563]  POLICY  IN  REVIEW  145 

conveyances  and  wills  already  operative,  unless  they  were 
again  registered  within  three  months ;  ^  an  attempt  to  levy 
back  taxes  upon  lands  of  the  proprietors  in  Pennsylvania, 
although  such  lands  had  not  been  liable  under  former  tax 
acts;^  and,  finally,  a  law  disqualifying  one  John  Adams 
for  membership  in  the  Barbadoes  assembly  because  he  had 
been  convicted  and  punished  for  a  crime. ^ 

The  law  officers  objected  in  numerous  instances  to  the 
practice  of  joining  two  or  more  acts  under  the  same  title, 
or  to  the  blending  under  one  title  of  provisions  upon  un- 
related subjects.     Such  defects  resulted  from  ignorance  or 
carelessness,  or  occasionally  from  a  deliberate  attempt  to 
I  secure  questionable  ends  by  means  of  "  riders."     But  in 
(  any  case,  they  rendered  the  task  of  review  m^r-eudifficult, 
I  and  shocked  the  le^al  sensibilities  of  men  trained  in  the 
I  English  la.w. 

Numerous  acts,  many  of  which  were  otherwise  unex- 
ceptionable, were  disallowed  because  their  operation  was 
contingent  upon  a  previous  law  already  annulled.  Such, 
for  example,  was  the  fate  of  a  Pennsylvania  act  appoint- 
ing collectors  for  a  duty  on  convicts  which  had  already 
met  with  the  royal  veto.* 

Laws  were  considered  defective,  also,  because  of  irreg- 
ularity in  the  manner  of  th^i£„,gjiac  Fourteen  acts 
of" Maryland,  for  instance,  were  condemned  because,  hav- 
ing been  passed  in  the  absence  both  of  a  governor  and  a 
lieutenant  governor,  they  were  signed  by  the  entire  council 
instead  of  the  president  of  the  council,  who  in  accordance 
with  the  governor's  instructions  should  have  assumed  the 

^  A.  P.  C,  vol.  iv,  p.  405 ;  3  March,  1759. 
«  CO/5-1275,  W,  45 ;  March,  1760. 

*  A.  P.  C,  vol.  iv,  p.  686;  20  July,  1764. 

*  A.  P.  C,  vol.  iv,  p  .72 ;  29  October,  1748. 


146  REVIEW  OF  COLONIAL  LEGISLATION  [564 

goveniment  during  the  interval/  An  act  of  South  Caro- 
lina, passed  during  a  time  of  civil  confusion,  by  an  assem- 
bly which  had  been  dissolved  and  a  governor  who  had 
usurped  authority,  was  held  by  the  Board  not  to  be  a  law 
in  force. ^  In  other  cases  unseemly  haste  in  enactment  was 
the  determining  factor  against  a  law.  An  act  of  Pennsyl- 
vania which  granted  to  an  individual  a  ten-year  exemption 
from  suits  for  debt  was  disallowed  because,  after  having 
been  introduced  upon  the  application  of  only  part  of  the 
creditors,  it  was  passed  through  all  the  readings  in  a  single 
day.^  An  ordinance  of  South  Carolina  concerning  the  In- 
dian trade  was  declared  to  have  been  passed  "  in  an  illegal 
and  precipitate  manner  "  because  the  assembly  was  sum- 
moned upon  only  eight  days'  notice,  and  the  ordinance 
passed  in  two  days/ 

/  Many  acts  were  declared  void  upon  the  ground  that  the 
^  assemblies  in  passing  them  had  exceeded  their  proper  juris- 
\diction.  A  majority  of  these  laws  were  concerned  with 
alleged  crimes  or  disputes  regarding  private  property  which 
were  properly  cognizable  by  courts  of  law.  This  excess  of 
legislative  zeal  was  due  partly  to  the  dominant  position  of 
the  assemblies  in  the  provincial  governments,  more  partic- 
ularly that  of  the  "General  Courts"  in  the  charter  colonies, 
and  to  a  common  lack  of  satisfactory  equity  courts.  One 
of  the  most  conspicuous  acts  of  usurpation  was  that  of  the 
Massachusetts  general  court,  which  passed  several  acts  fin- 
ing Vetch  and  his  associates  for  carrying  on  an  illegal 
trade  with  the  enemy.    As  this  crime  was  not  one  "cogniz- 

/>TO/5-727,  p.  188;  2  November,  1710. 

*  CO/5-372,  I,  65.    B.  T.  /.,  vol.  Ivii,  unpaged,  26  October,  1750. 

*A.  P.  C,  vol.  iv,  p.  341 ;  16  June,  1758. 

*A.  P.  C,  vol.  iii,  p.  514.  B.  T.  J.,  vol.  xlvii,  p.  56;  25  May,  1738. 
The  law  officer  made  a  similar  criticism  against  an  act  of  North  Caro- 
lina, CO/5-296,  B.  77. 


565]  POLICY  IN  REVIEW  147 

able  before  the  General  Assembly,"  the  Privy  Council 
ordered  that  the  accused  give  security  and  abide  by  the  re- 
sult of  "  a  fresh  trial  in  the  ordinary  course  of  law."  ^  An 
attempt  of  Jamaica  to  regulate  the  exportation  of  prize 
goods  brought  to  the  Island,  was  declared  "  an  arrogant 
assumption  of  power,"  the  matter  being  one  of  general 
policy  "  to  which  the  jurisdiction  of  the  British  legislature 
alone  can  extend."  ^ 

y  In  the  great  majority  of  cases,  however,  laws  disallowed 
^^^upon  grounds  of  non-conformity,  or  "  repugnance  to  the 
law  of  England,"  were  deemed  contrary  to  the  dictates  of 
some  higher  authority,  or  to  the  provisions  of  a  more  fun- 
damental law.  Governors  frequently  violated  their  instruc- 
tions by  passing  laws  upon  forbidden  subjects,  or  by  neg- 
lecting to  insist  upon  the  inclusion  of  a  suspending  clause. 
Because  such  legislation  was  always  objectionable  in  itself „ 
the  breach  of  royal  instructions,  although  often  mentioned, 
usually  assumed  a  minor  place  among  the  reasons  given  for 
disallowance.  An  appropriation  act  of  South  Carolina, 
however,  was  ordered  to  lie  by,  and  the  governor  was  in- 
structed to  secure  the  passage  of  a  new  law  altering  so  much 
of  the  old  as  was  inconsistent  with  the  twentieth  article  of 
his  instructions.'  An  act  passed  in  Jamaica  which  increased 
the  membership  of  the  assembly  and,  despite  standing  in- 
structions, contained  no  suspending  clause,  was  disallowed 
solely  upon  that  account;  although,  in  view  of  the  evident 
necessity  of  the  act,  the  governor  was  allowed  to  approve 
a  new  law  identical  with  that  repealed.* 

In  numerous  instances  the  Council  declared  laws  incon- 

L**^P.  C,  vol.  ii,  p.  516;  20  February,  1707. 
*  A.  P.  C,  vol.  iv,  p.  511 ;  15  February,  1762. 
»  CO/5-365,  F,  8;  October,  1735. 
*A.P,  C,  vol.  V,  p.  352;  s  March,  1773. 


148  REVIEW  OF  COLONIAL  LEGISLATION  [566 

si  stent  with  the  terms  of  a  provincial  charter,  and  therefore 
void.  Several  objectionable  acts  passed  by  the  proprietary 
governments  of  the  Carolinas  were  annulled  upon  the  broad 
ground  that  being  repugnant  to  the  law  of  England,  they 
constituted  a  violation  of  the  law-making  power  conferred 
by  the  charter.  Thus,  with  much  show  of  logic,  an  act  of 
North  Carolina  which  gave  a  preference  to  executions  upon 
judgments  for  local  debts,  was  declared  "contrary  to  reason, 
inconsistent  with  the  Laws,  [and]  greatly  prejudicial  to 
the  Interests  of  this  Kingdom,  and  therefore  not  warranted 
by  the  Charter,  and  consequently  void."  ^  A  Connecticut 
law  against  "  Hereticks,"  against  which  the  Quakers  com- 
plained, was  characterized  as  "contrary  to  the  Liberty  of 
Conscience  Indulged  by  Dissenters  by  the  Law  of  England, 
as  likewise  to  the  Charter  granted  to  the  Colony."  ^ 
Massachusetts  lost  several  laws  which  were  deemed  incon- 
sistent with  her  charter.  In  these  cases,  however,  disallow- 
ance was  based  upon  more  specific  grounds.  Quakers  and 
members  of  the  Church  of  England  contended  with  success 
that  their  taxation  for  the  support  of  Puritan  ministers 
was  a  violation  of  the  charter  provision  allowing  liberty  of 
conscience  to  all  Christians  except  Catholics.^  An  early 
act  for  "  Regulating  Chancery  "  was  held  to  violate  the 
charter  in  that  by  implication  it  prohibited  appeals  to  his 
majesty  in  real  actions ;  while  a  law  "  Impowering  the  In- 
habitants of  Rochester  to  Regulate  the  taking  of  Fish  " 
was  held  to  conflict  with  a  provision  that  no  subject  of 
England  should  be  debarred  from  fishing  on  the  sea  coast.* 

^  A.  P.  C\,  vol.  iv,  p.  43;  7  August,  1747. 

*  A.  P.  C,  vol.  ii,  p.  832;  II  October,  1705. 

*  C'O/5-915,  p.  400.    B.  T.  J.,  vol.  xxxvi,  p.  254.    Acts  and  Resolves, 
vol.  ii,  pp.  477,  635.    A.  P.  C,  vol.  iii,  p.  491. 

*  CO/5-895,  p.  213.     A.  P.  C,  vol.  V,  p.  395;   I  June,  1774.     CO/S- 
907.  p.  75. 


567]  POLICY  IN  REVIEW  149 

Repugnance  to  such  acts  of  Parliament  as  extended  to 
the  plantations  proved  fatal  to  a  considerable  number  of 
colonial   laws.      These   included   acts   imposing  obnoxious 
duties  upon  British  goods,  interfering  with  the  admiralty 
courts  or  with  the  royal  customs  officers,  regulating  the 
exchange  upon  foreign  coins,  or  taxing  the  importation  of 
convicts.     In  several  instances  laws  annulled  were  not  in 
direct  conflict  at  the  time  of  their  enactment  with  any  act 
of  Parliament  which  extended  to  the  colonies.     A  law  of 
New  York,  passed  at  the  behest  of  the  Board,  waidj.^ 
allowed  because  a  subsequent  act  of  Parliament  covered 
the  subject  and  rendered  its  further  operation  unnecessary/ 
The  crown  disallowed  a  Pennsylvania  act  for  ''  Regulating 
the  Value  of  Coins  "  in  order  to  clear  the  way  for  the 
royal  proclamation  and  the  act  of  Parliament  upon  that 
subject;  and  a  law  of  New  Jersey  for  the  salvage  of  ships 
was  disallowed  because  it  extended  to  the  province  in  their 
entirety  two  acts  of  Parliament  which  by  their  own  pro- 
visions already  had  partial  application  there. ^ 
"Because  of  variance  with  the  common  law,  the  Privyl 
Council  annulled  numerous  acts  in  regard  to  the  division! 
of  intestate's  estates,  the  control  of  married  women  over! 
their  own  property,  the  granting  of  divorce,  the  issuing  of  \ 
attachments  for  debt,  and  various  other  subjects.     Ah  act 
"oF^ulh^'CaTolina" w^^  new-comers  a  five  years' 

exemption  from  arrest  for  previous  debts,  was  declared 
"  in  its  own  nature  repugnant  to  the  Common  Law."  ^  ^As 
a  rule,  however,  the  law  officers  stated  that  acts  offendij^ig 
in  this  respect  were  "  repusTiant  to  the  law  of  England,'' 
and  did  not  specifically  mention  the  common  law.    Jackson, 

p»**^estraining  Pirates,"  N.   Y.   Col.  Docs.,  vol.  v,  p.  47;  3  March, 
1708. 
'  A.  P.  C,  vol.  V,  p.  Ill ;  26  February,  1768. 
'  CO/5-362,  D,  64.    A.  P.  C,  vol.  iii,  p.  396. 


I50  REVIEW  OF  COLONIAL  LEGISLATION  [568 

who,  as  king's  counsel,  loved  to  play  with  large  abstrac- 
tions, frequently  based  his  criticisms  upon  the  broad  ground 
that  a  law  constituted  a  violation  of  the  British  constitu- 
tion, or,  in  other  words,  that  it  failed  to  maintain  the  Eng- 
lish standard  of  legal  justice.  Provisions  empowering 
magistrates  to  commit  or  to  exempt  alleged  offenders  upon 
their  own  oaths  were  held  to  establish  "  a  kind  of  inquisi- 
torial authority"  which  was  "contrary  to  the  spirit  of  the 
laws  of  this  country,"  and  "  little  conformable  to  the 
British  principles  of  Justice."  ^  Upon  Jackson's  suggestion, 
the  Council  disallowed  with  similar  comment  two  acts  from 
the  Island  colonies  which  permitted  attachments  upon  the 
goods  of  absent  persons,^  and  a  law  of  Pennsylvania  which 
fixed  a  penalty  for  an  offence  committed  outside  the  limits 
of  the  province.^ 

Jn  view  of  the  importance  which  English  law  accorded 
Jto  the  preservation  of  personal  security  and  freedom,  it  was 
I  natural  that  the  law  officers  should  be  critical  of  unseemly 
infringements  upon  the  domain  of  individual  liberty.    Upon 

(this  ground  they  made  numerous  objections  to  excessively 
severe  penalties  imposed  by  criminal  laws.  They  insisted 
that  no  man  should  be  outlawed  or  attainted  except  by 
judicial  proceedings  and  upon  failure  to  surrender  himself 
within  ample  time  after  being  summoned  to  do  so.*     They 

^  An  act  of  West  Florida,  impowering  magistrates  to  prohibit  the 
sale  of  rum  to  the  Indians,  A.  P.  C,  vol.  v,  p.  312;  7  June,  1771.  A 
similar  criticism  was  made  against  an  act  of  New  York,  A.  P.  C,  vol. 
V,  p.  399;  6  July,  1774. 

»  A.  P.  C,  vol.  V,  p.  390;  7  June,  1771.  A.  P.  C,  vol.  v,  p.  390;  2 
February,  1774. 

»  A.  P.  C,  vol.  V,  p.  398;  6  July,  1774.  A.  P.  C,  vol.  v,  p.  38;  North 
Carolina,  26  June,  1767. 

*  A  North  Carolina  act  for  "  Preventing  Tumults  and  Riotous  As- 
semblies" provided  that  when  judges  or  justices  should  post  proclama- 
tions commanding  an  offender  to  surrender  within  sixty  days  and  stand 
trial,  he  should,  upon  failure  to  comply,  be  deemed  guilty,  and  that  it 


569]  POLICY  IN  REVIEW  151 

objected  both  to  the  conviction  of  a  person  accused,  upon 
his  mere  refusal  or  failure  to  clear  himself  by  an  oath — a 
provision  which  could  not  but  "  prove  an  irresistable  temp- 
tation to  perjury,"  ^  and  to  conviction  upon  an  information 
in  writing  unsupported  by  the  oath  of  the  accuser."  The 
Board  regarded  with  disfavor  acts  which  conferred  arbi- 
trary or  excessive  powers  upon  commissioners,  or  upon 
justices  of  the  peace.  Upon  a  law  of  Massachusetts  re- 
garding the  care  of  the  poor,  the  king's  counsel  reported: 
It  "  vests  unaccountable  power  in  parish  officers.  At  their 
pleasure  they  may  disturb  the  profitable  living  of  any  person 
whatsoever  by  Informing  for  the  strangest  misdemeanors 
ever  Invented.  No  single  person  of  either  sex  must  live  at 
their  own  hand,  but  under  some  orderly  family  govern- 
ment; in  other  words,  not  keep  house  for  themselves — a 
most  unreasonable  restraint."  ^  In  the  interests  of  personal 
security  the  Council  disallowed  an  act  of  Virginia,  passed 
in  order  to  preserve  the  peace  by  preventing  assaults,  which 
exposed  citizens  to  corporal  punishment  upon  a  hasty  ver- 
dict, and  allowed  any  person  whatever  to  prosecute  in  his 

should  be  lawful  for  any  person  to  kill  him,  and  that  his  property- 
should  be  confiscated.  Although  Jackson  conceded  that  the  disor- 
dered state  of  the  province  afforded  some  excuse  for  this  act,  he  de- 
clared it  "  altogether  unfit  for  any  part  of  the  British  Empire "  and 
"  irreconcilable  to  the  principles  of  the  constitution."  A.  P.  C,  vol.  v, 
p.  336;  22  April,  1772. 

^A  law  of  New  York  which  declared  two  men  outlaws  after  ten  days, 
/without  further  proceedings  against  them,  the  Board  considered  "  un- 
/  just  and  contrary  to  the  laws  of  England,  which  allow  a  much  longer 
/  time  in  case  of  Outlawry."  CO/5-1 119,  P-  273.  CO/5-1048,  V,  8;  31 
I  December,  1702.  Opinion  of  Attorney  General  North ey  upon  an  act 
I  of  Virginia,  "  Apprehending  an  Outlying  Negro,"  Chalmers,  Opinions, 
N^.  405- 

^  A.  P.  C,  vol.  V,  p.  399;  6  July,  1774.     CO/5-942,  p.  271;  10  July, 
1764.     CO/5-1055,  Dd,  99;  II  December,  1729, 
^  A.  P.  C,  vol.  iv,  p.  73 ;  Antigua,  28  November,  1748. 
»  Opinion  of  West,  CO/5-878,  Bb,  133;  15  May,  1725.    CO/5-885,  15. 


152  REVIEW  OF  COLONIAL  LEGISLATION  [570 

own  name  for  an  injury  to  another,  provided  the  person 
wounded  neglected  to  bring  action  within  three  months/ 
A  like  fate  befell  a  law  of  South  Carolina  whereby  the 
assembly  declared  a  virtual  suspension  of  habeas  corpus, 
and  sought  to  indemnify  certain  judges  who  were  charged 
with  arbitrary  and  illegal  conduct.^ 

The  ^reat  importance  accorded  by  English  jurisprudence 
to  the  protection  and  security  of  rights  in  private  property 
is  also  strongly  reflected  in  the  attitude  of  the  law  officers 
and  the  Board  of  Trade  toward  colonial  enactments. 
Hence  arose  the  additional  restrictions  and  elaborate  safe- 
guards placed  upon  the  passage  and  review  of  *'  private  *' 
laws,  most  of  which  affected  the  property  of  particular 
persons.  Moreover,  general  laws  which  contained  provis- 
ions, even  though  obscure  and  relatively  unimportant,  look- 
ing towards  the  confiscation  of  private  property  without 
compensation  or  trial  at  law,  were  sure  to  be  challenged  in 
England.  The  Board  refused,  for  example,  to  sanction  the 
pulling  down  of  certain  houses  in  Kingston,  Jamaica,  until 
provision  should  be  made  for  indemnifying  the  owners.* 
Lamb  objected  to  a  Virginia  act  for  dividing  two  counties, 
because  without  legal  process  it  compelled  a  man  to  pull  down 
a  mill  and  a  mill-house,  thus  depriving  him  of  property  upon 
a  mere  "  suggestion  of  inconvenience  arising  therefrom."  * 
An  attempt  to  lower  the  rate  of  interest  upon  existing  loans, 
and  another  to  set  a  price  upon  lands  taken  over  by  the 

1  A.  P.  C,  vol.  V,  p.  362;  7  April,  1773. 

^  CO/5-363,  E,  5.  A.  P.  C,  vol.  iii,  p.  396;  11  April,  1734.  The  act 
for  "  Preventing  Suits  and  Disturbances  to  Judges  according  to  the 
Habeas  Corpus  Act,"  grew  out  of  a  quarrel  in  the  assembly  over  the 
granting  of  unsettled  lands.  Several  deputies  were  restrained  illegally 
in  the  custody  of  messengers  of  the  house  for  "  running  out  patent 
lands  contrary  to  the  Quit  Rent  Act." 
^^.  P.  C,  vol.  ii,  p.  684;  25  October,  1714. 

*  00/5-1330,  p.  239;  22  May,  1762. 


27l]  POLICY  IN  REVIEW  153 

colony  without  affording  the  owner  an  opportunity  of  op- 
posing the  act,  were  held  to  be  confiscatory.^  In  its  solici- 
tude for  the  security  of  private  property,  the  Board  de- 
feated attempts  to  dispose  of  the  property  of  minor  heirs 
without  the  consent  of  a  legal  guardian.^  It  insisted  that 
acts  empowering  vestries  to  sell  glebes  should  specify  the 
future  application  of  the  money  thus  obtained,  and  not 
leave  its  disposal  wholly  to  the  discretion  of  the  vestry,  lest 
the  interest  of  the  parish  be  injured/  It  objected  also  to 
the  delegation  of  final  or  extensive  jurisdiction  in  regard 
to  the  disposal  of  private  property  to  commissioners  or 
justices  of  the  peace.  Jackson,  for  example,  criticized  an 
act  of  New  York  for  defraying  the  expenses  incurred  in 
settling  the  boundaries  of  certain  lands,  because  the  sums 
due  were  to  be  fixed  by  commissioners  from  whose  decision 
there  was  no  appeal,  while  the  lands  of  claimants,  some  of 
whom  were  absent,  some  of  whom  were  infants  and  some 
femmes  couvertes,  were  to  be  sold  in  default  of  prompt 
payment.*  Any  attempt  to  dispense  with  the  statute  of 
limitations  was  sure  to  meet  with  disapproval,  because,  in 
the  language  of  the  king's  counsel,  no  law  was  ''  more 
essential  to  the  security  of  private  property."  ^ 

The  numerous  colonial  acts  regarding  the  conveyance  of 

^  A.  P.  C,  vol.  V,  p.  160;  New  Hampshire,  12  August,  176S.  A.  P. 
C,  vol.  V,  p.  363 ;  Antigua,  7  April,  1773. 

'  C'O/5-300,  F,  5;  North  Carolina,  30  June,  1766.  Report  of  West 
upon  an  act  of  Pennsylvania  for  "Vesting  the  House  and  Lands  of 
the  Clark  estate  in  Philadelphia  in  trustees  to  be  sold,"  CO/5-1265,  O, 
191 ;  12  November,  1719.  A  concise  summary  of  this  law  and  the  facts 
relevant  to  it,  appears  in  Dickerson,  American  Colonial  Government, 
p.  259- 

«  A.  P.  C,  vol.  iv,  p.  684;  Virginia,  20  July,  1764.    CO/5-1369,  p.  237 

*  CO/5-1077,  p.  293;  13  January,  1774.  CO/5-972,  E,  46;  24  Decem- 
ber, 1723.    CO/5-855,  p.  289;  21  July,  1774. 

'  CO/5-301,  G,  48.  A.  P.  C,  vol.  V,  p.  308;  North  Carolina,  7  June, 
1771.    A.  P.  C,  vol.  iii,  p.  226;  Virginia,  26  March,  1729. 


154  REVIEW  OF  COLONIAL  LEGISLATION  [572 

lands  were  practically  all  of  a  private  nature.  They  fall, 
for  the  most  part,  into  three  classes:  those  (i)  confirming 
doubtful  titles,  those  (2)  authorizing  sale  or  partition,  and 
(3)  those  lor  barring  or  docking  entails.  In  reviewing 
these  laws  the  Board  insisted  with  special  firmness  upon 
adherence  to  the  formalities  prescribed  for  private  bill  pro- 
ce3ure,  and  the  absence  of  the  required  saving  or  suspend- 
ing clause  was  almost  certain  to  cause  disallowance.  An 
adverse  report  upon  three  laws  of  Virginia  observes: 
"  these  acts  affect  the  Rights  and  properties  of  your  Maj- 
esty's subjects.  Yet  they  were  passed  without  the  observ- 
ance of  any  of  the  [prescribed]  regulations.  .  .  .  [There  is] 
no  certificate  of  any  previous  Notification  in  the  Parish 
Church  of  the  intention  of  the  parties  to  apply  for  such  an 
act,  .  .  .  nor  any  proof  of  the  consent  of  the  several  per- 
sons interested,  .  .  .  nor  saving  of  the  right  of  Your  Maj- 
esty, or  of  any  Body  Politic  or  Corporate,  nor  of  any  pri- 
vate persons  not  mentioned,  nor  any  clause  suspending  the 
effect  until  royal  approval.  These  regulations  [are]  essen- 
tial to  the  security  of  the  right  of  property  of  Your  Maj- 
esty's subjects  [and]  are  coeval  with  the  Constitution  of 
the  British  Colonies.  [They]  cannot  be  set  aside  without 
subverting  a  fundamental  principle."  ^ 

In  considering  laws  which  confirmed  titles,  care  was 
taken  to  safeguard  the  possible  rights  ol^any  prior  claim- 
ants; while  in  passing  upon  acts  authorizing  sale  or  parti- 
tion, the  Board  was  especially  solicitous  for  the  interests 
of  minor  or  future  heirs.  It  was  objected  that  an  act  of 
Maryland  which  directed  the  sale  of  real  estate  for  the 
payment  of  debts,  left  the  personal  property  wholly  exempt, 
to  the  manifest  prejudice  of  the  heirs.^     A  public  act  of 

*  A.  P.  C,  vol.  iv,  p.  449;  20  May,  1760. 
^e^CO/s-7^^,  H,  48;  17  September,  1707.    In  connection  with  an  act  of 
New  Hampshire  the  Board  refused  to  accept  the  consent  of  a  minor 
to  the  exchange  of  his  land.    A.  P.  C,  vol.  iv,  p.  679;  20  July,  1764. 


573]  POLICY  IN  REVIEW  155 

New  York  for  the  partitioning  of  lands  held  in  joint  tenacy 
was  disallowed  because  it  gave  lands  to  all  tenants  in  com- 
mon and  their  heirs,  thus  favoring  the  heirs  of  tenants  for 
life  at  the  expense  of  those  inheriting  from  owners  in  fee 
-simple/ 

In  several  instances  the  Board  refused  to  consider  the 
merits  of  a  controversy  regarding  property,  upon  the 
ground  that  its  settlement  should  have  been  intrusted  to  a 
court  of  law,  rather  than  to  a  private  act  of  the  legislature. 
It  was  held  unreasonable  for  a  legislature  to  pass  a  law 
setting  aside  a  conveyance  of  land  as  fraudulently  obtained, 
without  even  hearing  the  parties  concerned,  some  of  whom 
were  infants  residing  in  England.^  An  act  of  Georgia 
which  was  aimed  to  confer  upon  certain  persons  a  clear  title 
to  lands  near  Savannah,  was  disallowed  because  "  the  de- 
termining upon  a  question  of  this  nature  by  a  partial  act 
of  Legislature  without  any  hearing  of  the  parties  or  any 
of  those  Regulations  and  Exceptions  which  Justice  and 
Policy  have  prescribed  in  all  general  laws  for  quieting  pos- 
sessions, is  arbitrary,  irregular  and  unjust,  and  subversive 
to  those  principles  of  the  Constitution  by  which  disputes 

1  CO/5-1124,  p.  107.  B.  T.  J.,  vol.  xxviii,  p.  380;  9  July,  I7i9- 
'  An  act  of  New  York  for  "Annulling  a  fraudulent  Conveyance  of  Mary 
Davenport."  The  facts  were  as  follows:  One  John  Miseral  willed 
part  of  his  estate  to  his  children  and  the  remainder,  a  farm,  to  his 
wife  Mary,  with  power  to  sell  or  dispose  of  the  same  during  her  life. 
If  she  retained  it,  the  property  was  to  be  equally  divided  among  the 
children.  Miseral  died,  and  the  widow  assigned  the  estate  to  one 
Brown  in  trust  for  one  Price,  whom  she  soon  married,  and  Brown 
made  over  the  estate  to  Price.  He  willed  it  to  his  wife  during  her 
life,  and  after  death  to  his  cousins  and  their  heirs.  After  Price's 
death  the  wife,  unknown  to  the  cousins  and  their  minor  heirs,  ob- 
tained from  the  legislature  an  act  vesting  in  her  the  fee  simple.  This 
was  done  upon  the  suggestion  that  she  was  illiterate,  and  did  not  know 
the  purport  of  the  document  by  which  she  relinquished  her  right  to 
the  land.  The  matter  was  the  subject  of  a  long  hearing  before  the 
Board  of  Trade.    B.  T.  J.,  vol.  xliii,  pp.  52-56. 


156  REVIEW  OF  COLONIAL  LEGISLATION  [574 

.  .  .  in  all  matters  of  private  property  .  .  .  are  referred 
to  the  decision  of  the  Court  of  Law."  ^ 

Laws  for  cutting  off  the  entail,  or,  in  other  words,  doing 
away  with  the  limitation  of  an  estate  to  certain  heirs,  were 
common  in  the  colonies,  because  the  king's  writs  for  exe- 
cuting a  fine  and  recovery — the  method  observed  in  Eng- 
land— were  held  not  to  run  there. ^  No  objection  was  made 
to  these  acts  provided  the  tenant  in  tail  could  have  obtained 
the  same  result  by  fine  and  recovery  had  he  been  in  Eng- 
land, and  provided  that  all  the  parties  interested  gave  their 
free  consent.^  Attempts  to  make  entails  perpetual,  an  ob- 
ject in  conformity  with  the  earlier  intent  of  English  law, 
though  contrary  to  its  later  practice,  were  discountenanced 
because  they  tended  to  "  create  a  perpetuity  "  which  the 
law  did  not  allow.*  The  legislature  of  Virginia  passed 
many  acts  authorizing  the  exchange  of  exhausted  lands 
held  in  tail,  for  fresh  lands  which  might  be  either  entailed 
or  in  fee  simple.  In  behalf  of  the  persons  in  whom  rested 
the  prospect  of  remainder  or  reversion,  the  Board  insisted, 
not  only  that  these  laws  have  the  consent  of  all  persons 
whose  interests  were  affected,  but  also  that  lands  taken  in 

*  A.  P.  C,  vol.  iv,  p.  492;  2  July,  1761.  A.  P.  C,  vol.  iv,  p.  678;  New 
Hampshire,  20  July,  1764. 

«  Blackstone,  Book  II,  p.  11 1  (Ed.  Geo.  Sharswood,  Pa,  1870),  ex- 
plains the  origin  of  the  custom  of  leaving  estates  in  tail,  and  of  the 
ways  in  which,  upon  grounds  of  policy,  lands  were  gradually  freed 
from  the  encumberance,  until  in  England,  an  estate  tail  differed  but 
little  from  a  fee  simple. 

»  CO/5-1054,  Dd,  19;  7  January,  1727.  CO/5-1326,  V,  70;  6  May, 
1745.  Pennsylvania  alone  passed  a  general  law  for  barring  entails, 
modeled  upon  the  English  custom  of  fine  and  recovery.  Lamb  pro- 
nounced it  conformable  to  the  law  of  England,  but  thought  that  the 
methods  observed  in  other  colonies  were  preferable.  It  was  confirmed 
May  13,  1751,  A.  P.  C,  vol.  iv,  p.  116.    CO/5-1273,  V,  78. 

*  CO/s- 1 330,  Y,  112;  Virginia,  12  November,  1763.  CO/s-1330,  Y, 
128. 


575]  POLICY  IN  REVIEW  157 

exchange  for  those  entailed  be  of  as  great  a  yearly  value, 
and,  except  for  the  possible  barring  of  the  entail,  subject' 
to  exactly  the  same  uses  and  legal  limitations  as  had  been, 
the  original  property/ 

Colonial  laws  governing  the  proof  of  wills,  and  the 
powers  and  duties  of  executors  appear  to  have  followed 
closely  the  English  precedents  upon  these  subjects.  South 
Carolina  attempted  to  make  the  process  of  proving  wills 
regarding  real  estate  less  tedious  and  expensive ;  but  Lamb, 
while  conceding  that  the  change  might  make  for  conveni- 
ence, recommended,  in  the  interests  of  conformity,  that  the 
law  be  disallowed,  and  that  the  province  continue  to  use 
the  method  observed  in  England  and  in  the  other  colonies.^ 
Various  attempts  of  the  legislatures  to  order,  upon  consid- 
erations of  equity,  the  disposal  of  estates  otherwise  than  as 
directed  by  will,  were  held  to  constitute  an  encroachment 
upon  the  proper  domain  of  the  courts,  and  an  undue  limi- 
tation upon  the  inalienable  right  of  every  man  to  dispose 
of  property  acquired  by  himself.  It  was  enacted  by  New 
Hampshire,  for  example,  that  if  any  child  born  during  the 
life  of  a  parent  testator  was  not  mentioned  in  the  will,  he 
should  receive  the  same  proportion  as  though  the  parent 
had  died  intestate.^  Even  more  objectionable  was  a  private 
act  of  Massachusetts  by  which  part  of  an  estate  entailed 
to  one  of  two  brothers  was  directed  to  be  sold,  two-thirds 
of  the  proceeds  being  devoted  to  the  education  of  both 
brothers,  and  the  remainder  being  allotted  to  the  mother.* 
An  act  of   South  Carolina  for  "  Settling  the  Estate  of 

1  CO/S-1320,  R,  29.    CO/5-1323,  S,  18.    CO/5-1366,  p.  394.    CO/5- 
1366,  p.  468. 

*  A.  P.  C,  vol.  iv,  p.  486;  25  June,  1761. 

»  CO/5-915,  p.  174.    CO/5-867,  W,  40;  27  August,  1718. 

*  Acts  and  Resolves,  vol.  vi,  appendix,  p.  161. 


158  REVIEW  OF  COLONIAL  LEGISLATION  [575 

Richard  Beresford "  made  several  alterations  in  a  will, 
taking  part  of  the  estate  from  one  son  and  giving  it  to  an- 
other, and  altering  certain  limitations  and  bequests.  Before 
recommending  the  disallov^ance  of  this  law,  however,  the 
Board  obtained,  in  the  interests  of  equity,  a  promise  from 
the  favored  brother  to  maintain  and  educate  his  half-brother 
who  had  been  neglected.^  The  legislature  of  New  Hamp- 
shire attempted  to  change  an  estate  entailed  to  fee  simple 
upon  a  suggestion,  unsupported  by  proof,  that  it  had  been 
entailed  by  mistake  in  writing  the  will ;  and  Maryland  ven- 
tured, upon  grounds  of  equity,  to  validate  a  document 
made  in  the  form  of  a  will  in  the  deceased's  handwriting, 
but  neither  witnessed  nor  published  by  him  as  such.^ 

Under  the  English  common  law  the  wife  of  an  intestate 
received  one-third  of  the  real  property  for  life,  while  the 
eldest  son  inherited  the  remainder  to  the  exclusion  of  the 
other  children.  In  1692  the  assembly  of  Massachusetts 
sanctioned  a  custom  which  prevailed  throughout  New  Eng- 
land by  enacting  that  the  wife  should  have  one-third  of  the 
intestate's  realty  for  life,  and  that  the  remainder  should  be 
divided  in  equal  portions  among  the  children,  with  a  double 
allotment  to  the  eldest  son.  This  law  appears  to  have 
passed  the  committee  without  special  notice,  and  it  was  con- 
firmed, together  with  thirty- four  others,  in  1695.  Toward 
acts  of  similar  intent  passed  by  other  colonies  during 
this  period,  however,  the  Board  was  less  lenient.  Laws 
of  Pennsylvania  and  New  Hampshire,  the  essential  provis- 
ions of  which  were  identical  with  those  of  the  Massachu- 
setts act,  were  disallowed  in  1706  upon  the  ground  that 
they  were  unreasonable,  inexpedient,  and  would  affect  many 

»  CO/5-401,  p.  95.  B.  T.  J.,  vol.  xlii,  p.  39.  A.  P.  C,  vol.  iii,  p.  412 ; 
8  August,  1734- 

*  A.  P.  C,  vol.  iv,  p.  256;  New  Hampshire,  21  June,  1754.  CO/S' 
1271,  V,  13;  Maryland,  i  November,  1703. 


577]  POLICY  IN  REVIEW  1 59 

owners  of  land  who  were  resident  in  England/  The  attor- 
ney general  also  took  exception  to  a  proposed  law  of  similar 
tenor  which  had  been  submitted  by  Virginia  because  it 
"varied  in  several  particulars  from  the  laws  in  force  here," 
and  provided  that  in  case  the  intestate  died  without  issue, 
the  wife  should  receive  one-half  the  estate,  and  the  next  of 
kin  to  the  husband  the  other,  whereas  under  English  law 
she  was  entitled  to  the  whole.^ 

Within  the  next  few  years,  however,  the  Board  aban-  i 
doned  its  attempts  to  exact  a  strict  conformity  to  the  Eng-  \ 
lish  law  regarding  intestates'  estates,  and  conceded,  by  its  |   ,_^ 
tolerance,  the  inadvisability  of  forcing  the  agrarian  rules    ' 
of  a  long-established  feudal  regime  upon  a  sparsely-settled 
frontier.    An  act  of  jPennsylvania  which  was  considered  at 
the  Board  in  October,  1709,  and  allowed  to  remain  in  force, 
provided,  as  did  the  Massachusetts  law,  that  one-third  of 
the  realty  should  go  to  the  wife  for  life,  and  the  remainder 
be  divided  among  the  children  with  a  double  share  to  the 
eldest  son.     The  act  contained  as  well  the  provision  pre- 
viously refused  to  Virginia,  that  in  the  absence  of  children 
the  estate  should  be  equally  divided  between  the  wife  and 
the  husband's  next  of  kin.*     In  like  manner  no  objection 
was  offered  to  an  act  of  New  Hampshire,  passed  in  1718, 
by  which  "  the  course  of  Descent  and  Distribution  "  was 
"  greatly  altered  from  that  of  England."  *     The  judicial 

^CO/5'i263,  N,  40.  CO/5-912,  pp.  156  and  159.  A  supplementary 
law  of  Pennsylvania  which  permitted  the  sale  of  an  intestate's  realty 
for  the  purpose  of  paying  his  debts,  educating  the  children  or  improving 
the  remainder  of  the  estate  was  disallowed  at  the  same  time  because 
it  contained  no  exclusion  of  lands  which  had  been  conveyed  by  any 
marriage  settlement, 

2  CO/5-1314,  L,  17;  15  August,  1704. 

»  Pa.  Stats,,  vol.  ii,  p.  199 ;  passed  12  January,  1705-6. 

*  Report  of  Lamb  upon  a  supplementary  law,  CO/5-926,  B,  4;  17 
March,  1747.    CO/5-926,  B,  17.    CO/5-941,  p.  226. 


l6o  REVIEW  OF  COLONIAL  LEGISLATION  [^^g 

committee  of  the  Privy   Council,   without  consulting  the 
Board  of  Trade,  annulled  the  Connecticut  intestate  law  of 
1699  t>y  deciding  for  the  appellant  in  the  case  of  Winthrop 
vs.  Lechmere  in  1728/     But  this  decision  was  reversed  in 
1745  after  a  second  hearing,  and  the  validity  of  the  Con- 
necticut act  which  was  similar  to  that  of  Massachusetts, 
was  finally  established.     An  intestate  act  of  Virginia  was 
disallowed  in   1751   because  it  had  been  passed  in  conse- 
quence of  an  objectionable  law  which  declared  slaves  per- 
sonal property;  and  an  act  of  North  Carolina  in  1764  be- 
cause it  allowed  one-third  of  the  realty  to  the  wife  and  the 
remainder  in  equal  portions  to  the  children  without  making 
any  provision  for  the  legal  representatives  of  children  de- 
ceased.^    Despite  these   exceptional   cases,   the  Board   of 
Trade  conceded,  after  the  first  decade  of  the  eighteenth 
century,  practically  all  that  the  colonists  desired  in  regard 
to  the  settlement  of  intestates'  estates,  a  course  which  con- 
stitutes a  rather  marked  digression  from  its  usual  insistence 
upon  a  close  conformity  to  English  law. 
/"  Upon  grounds  of   repugnancy   the  government  consis- 
/  tently  rejected  deviations  from  English  law  in  regard  to 
jL'  the  property  rights  of  married  women.     Against  an  act  of 
^*     Pennsylvania,  it  upheld  their  right  to  inherit  a  life  interest 
\  in   one-third   of   the  husband's  real  estate.^     An  act  of 

1  Cf.  supra,  p.  105. 

2  CO/5-1327,  W,  55.  A.  p.  C,  vol.  iv,  p.  139;  31  October,  1751.  CO/ 
S-299,  E,  83.    A.  P.  C,  vol.  iv,  p.  683 ;  20  July,  1764. 

•  This  law  for  "  Acknowledging  and  Recording  Deeds,"  provided 
that  no  woman  should  recover  her  dower  of  one-third  upon  any  lands 
or  tenements  which  had  been  sold  by  her  husband  during  his  cover- 
ture, although  she  had  been  no  party  to  the  deed,  and  had  in  no  way 
consen^  to  the  sale.  CO/5-1292,  p.  148.  CO/5-1264,  P,  79;  disal- 
loweir24  October,  1709.  Another  act  of  Pennsylvania  provided,  upon 
the  other  hand,  that  if  any  absent  husband  should  alienate  or  mort- 
gage lands,  except  in  certain  cases  of  necessity,   without  making  an 


579]  POLICY  IN  REVIEW  l6i 

Georgia  was  annulled  simply  because  it  allowed  a  married 
w^oman,  consenting  to  part  with  her  right  of  dower  by  be- 
coming a  party  with  her  husband  to  the  sale  of  lands,  to 
sign  and  seal  an  acknowledgment  of  consent  before  a  jus- 
tice of  the  peace,  whereas  in  England  she  could  do  this  only 
after  a  private  examination  before  one  of  the  king's 
judges/  Upon  the  other  hand,  the  crown  uniformly  dis- 
allowed acts  in  which  the  legislatures  took  a  position  some- 
what in  advance  of  contemporary  English  law,  by  enlarg- 
ing the  control  of  married  women  over  their  own  property. 
Numerous  private  laws  allowing  women  long  deserted  by 
their  husbands  to  sue  and  be  sued,  or  to  dispose  of  their 
own  property  as  though  single,  rested  upon  strong  and  un- 
disputed grounds  of  equity.  But  they  were  held  to  consti- 
tute too  wide  a  deviation  from  the  settled  law  of  England, 
and  too  great  an  encroachment  upon  the  property  rights  of 
absent  husbands.  However  great  the  hardship  upon  the 
wife,  it  was  insisted  that  the  husband's  right  to  her  prop- 
erty, both  real  and  personal,  should  not  be  taken  away  by 
an  act  of  the  legislature  without  his  consent.^ 
y^In  the  interests  of  justice  and  conformity  the  English 
yAovernment  desired  that  the  rules  and  methods  of  proce- 
^ I  dure  observed  in  colonial  courts  of  law  and  equity  should 
i  differ  as  little  as  possible  from  the  corresponding  rules  and 
\methods  in  Great  Britain.  rilEe^Quaker  colonies.  New  Jer- 

equivalent  provision  for  his  wife  and  children,  the  alienation  should 
be  void.  The  king's  counsel  objected  that  this  act  would  render  titles 
uncertain,  but  it  appears  to  have  been  confirmed  by  lapse  of  time. 
Chalmers,  Opinions,  p.  495.    CO/5-1269,  T,  22;  5  February,  1740. 

1  A.  P.  C,  vol.  iv,  p.  489;  25  June,  1761. 

2  CO/5-1326,  V,  42;  Virginia,  1746.  A.  P.  C,  vol.  v,  p.  150;  Massa- 
chusetts, 29  June,  1768.  CO/5-1328,  W,  152;  Virginia,  3  February, 
1754.  A.  P.  C,  vol.  iv,  p.  558;  Massachusetts,  16  March,  1763.  B.  T. 
J.,  vol.  Ixviii,  pp.  27s,  310;  Georgia,  2  July,  1761.  A.  P.  C,  vol.  iv,  p. 
674.    New  Hampshire,  20  July,  1764. 


l62  REVIEW  OF  COLONIAL  LEGISLATION  [580 

(sey  and  Pennsylvania,  passed  various  laws  allowing  wit- 
nesses, jurors  and  office-holders  to  qualify  themselves  by 
taking  a  ''  solemn  affirmation  "  in  place  of  the  customary 
oath.  The  earlier  acts  of  Pennsylvania  were  disallowed 
because,  contrary  to  the  practice  in  England,  they  permitted 
the  taking  of  affirmations  in  criminal  as  well  as  civil  cases, 
and  because  the  form  prescribed  did  not  contain  the  name 
of  Almighty  God.^  But  after  the  accession  of  the  Whigs 
TC^power,  the  Board  became  more  liberal  in  matters  of  re- 
ligion. Upon  the  plea  of  absolute  necessity  in  administer- 
ing justice,  both  Pennsylvania  and  New  Jersey  were  al- 
lowed, after  17 19,  not  only  to  sanction  the  use  of  the  affir- 
mation in  criminal  cases  and  as  a  qualification  for  office- 
holders, but  also  to  omit  from  it  the  obnoxious  phrase 
naming  the  Deity. ^  This  concession,  somewhat  grudgingly 
made  to  communities  where  Quakers  were  in  the  majority, 
the  Board  regarded  as  a  great  indulgence.  In  other  colo- 
nies the  use  of  the  affirmation  was  allowed  only  under  the 
same  restrictions  which  prevailed  in  England,  where  per- 
sons refusing  to  take  the  oath  were  disqualified  from  giving 
evidence  in  criminal  cases,  serving  as  jurors,  or  holding 
any  office  or  place  of  profit.^ 

\yith  a  like  solicitude  for  the  virtue  of  all  legal  proceed- 
ings., the  Board  refused  to^sanct ion  a  general  use  of  affi- 


\/^K  1; 


*  A  law  for  "  Giving  Evidence  and  Qualifying  Magistrates  '*  was  dis- 
allowed in  January,  1708.  CO/5-1263,  O,  78.  B.  T.  J.,  vol.  xviii,  p. 
345;  vol.  XX,  p.  21.  A  second  act  was  annulled  in  December,  1711. 
CO/5-1292,  p.  330. 

*  CO/5-995,  p.  426;  27  January,  1718.  B.  T.  J.,  vol.  xxvii,  pp.  87,  126. 
CO/5-1293,  pp.  172,  204.  Pa.  Stats.,  vol.  iii,  pp.  437-739-  The  words 
"  in  the  presence  of  Almighty  God "  were  omitted,  from  the  English 
affirmation  in  1721.  As  a  safeguard  it  was  insisted  that  persons  re- 
fusing the  oath  in  Pennsylvania  and  New  Jersey  should  declare  that 
they  did  so  because  of  conscientious  scruples,  and  that  for  making  a 
false  affirmation  they  should  be  liable  for  perjury. 

»  A.  P.  C,  vol.  iv,  p.  407 ;  Georgia,  3  March,  1759. 


58l]  POLICY  IN  REVIEW  163 

davits  as  evidence  in  court.  Their  employment  was  con- 
doned only  in  cases  of  utmost  necessity  in  civil  actions,  and 
ajter  notice  of  their  taking  had  been  given  to  the  other 
side.  THe  admission  of  depositions,  said  the  Board  in  con- 
nection with  an  act  of  Pennsylvania,  is  "  seldom  allowed 
in  this  Kingdom  even  in  Civil  matters,  nor  even  then  with- 
out observing  a  more  solemn  and  safe  method  of  allowing 
the  same  than  what  is  [here]  laid  down,  [and  is  always] 
disallowed  in  criminal  proceedings,  because  of  the  known 
benefit  of  cross  examining  a  witness,  .  .  .  which  often  by 
an  unexpected  question  discovers  the  truth,  .  .  .  and  some- 
times from  the  manner  of  delivering  his  testimony  a  jury 
has  not  believed  a  witness."  ^  Objectionable,  also,  were 
methods  of  drawing  juries  which  might  permit  bribery  or 
intimidation,^  and  regulations  in  regard  to  the  form  of 
writs,  or  the  manner  of  their  serving,  which  were  contrary 
to  the  practice  of  England.  South  Carolina,  because  of 
abuses  committed  by  the  provost  marshals,  changed  the 
first  process  at  law  from  a  summons  to  a  capias.  The 
Board  urged  that  the  act  be  amended  in  this  respect,  "  as 
in  our  law  processes  a  summons  is  always  supposed  to  be 
made  in  the  first  instance,  .  .  .  and  the  rather  as  it  will  be 
the  least  expensive  way  of  proceeding  and  ye  most  speedy 
to  obtain  justice."  ^ 

••'^MReport  upon  an  act  for  "  Giving  Evidence  and  directing  the  Quali- 
fication of  Magistrates."  It  admitted  as  evidence  in  any  case  the  depo- 
sition of  a  person  sick  or  leaving  the  Province.  Pa.  Stats.,  vol.  i,  p.  523. 
C'O/5-1264,  P,  19;  disallowed  8  January,  1707-8.  CO/5-gi2,  pp.  169, 
186,  210;  New  Hampshire,  19  November,  1706.     CO/5-1263,  O,  78. 

2  C.  S.  P.,  1693-6,  p.  84 ;  Carolina,  12  April,  1693.  A-  P-  C,  vol.  iv, 
p.  405;  Georgia,  3  March,  1759.  CO/5-648,  E,  25;  Georgia,  19  May, 
1 761. 

'  Board  to  Governor  Johnson,  CO/5-401,  p.  17;  2  April,  1731.  CO/ 
S-Z^,  D,  25.  Mass.,  Acts  and  Resolves,  vol.  i,  p.  362.  Note  on  ch.  5. 
A.  P.  C,  vol.  iv,  p.  6y6;  New  Hampshire,  20  July,  1764. 


l64  REVIEW  OF  COLONIAL  LEGISLATION  [382 

The  governors'  commissions  empowered  them  to  estab- 
Hsh  courts  of  equity;  and  the  crown  imposed  no  restric- 
tions upon  the  rules  of  procedure  to  be  observed  therein, 
except  the  usual  stipulation  that  they  be  as  nearly  as  pos- 
sible conformable  to  those  of  similar  tribunals  in  England. 
The  lack  of  equity  courts,  frequently  complained  of  in  the 
colonies,  seems  to  have  resulted  from  the  jealousy  of  the 
assemblies  respecting  the  powers  exercised  by  the  governor, 
as  chancellor,  rather  than  from  any  objection  to  their  estab- 
lishment upon  the  part  of  the  home  government.  Com- 
ments upon  laws  made  by  the  Board  of  Trade  frequently 
assume  the  existence  of  courts  of  chancery  in  the  colonies; 
while  any  express  exclusion  of  equity  in  a  colonial  act  was 
sure  to  meet  with  objection.^ 

In  some  instances  the  government  complained  that  newly 
established  courts  and  their  mode  of  procedure  made  for 
unnecessary  delay  and  a  needless  multiplication  of  suits. 
An  act  of  Massachusetts  provided  that  either  after  or  be- 
fore judgment  was  rendered  by  the  supreme  court,  the 
court  of  original  jurisdiction  could  review  the  case  again, 
and  that  the  third  verdict  obtained  by  either  party  should 
be  final,  save  for  the  right  of  appeal  to  the  crown.  This 
*'  so  oft  renewing  of  trials  in  the  same  case,"  with  long 
suspense  in  obtaining  a  final  issue,  the  Board  condemned 
as  too  dilatory  and  vexatious.^  Upon  similar  grounds  the 
crown  based  its  refusal  of  a  supreme  court  for  Pennsyl- 
vania which,  although  limited  as  to  original  jurisdiction, 
could  draw  from  inferior  tribunals  "  what  business  they 
thought  proper  "  by  writs  of  error.  Moreover,  a  provision 
that  the  court  of  equity  should  neither  try  anything  deter- 
minable at  common  law,  nor  decide  any  question  of  fact 

»  A.  P.  C,  vol.  V,  p.  364;  Antigua,  7  April,  1773. 

3  CO/5-909,  PP-  186,  239.    CO/s-862,  A,  59;  22  October,  1700. 


583]  POLICY  IN  REVIEW  1 65 

without  sending  it  to  an  issue  at  law,  threatened  to  "  make 
proceedings  in  equity  unsufferably  dilatory,  and  to  multiply 
trials  ...  in  the  plainest  cases  to  no  purpose."  ^ 

As  a  rule,  however,  the  complaint  was  that  the  colonists 
had  missed  the  happy  mean  of  English  judicial  procedure 
and  rendered  justice  uncertain,  not  by  encouraging  litiga- 
tion, but  rather  by  limiting  appeals  and  intrusting  summary 
and  final  jurisdiction  to  incompetent  courts.  To  colonists 
in  the  back  country  justice  necessarily  became  an  attribute 
of  the  local  community  rather  than  of  the  crown  or  even, 
of  the  province.  The  general  lack  of  trained  lawyers,  the: 
expense  and  difficulties  of  travel,  and  the  distrust  of  distant 
courts,  all  contributed  to  enhance  the  functions  of  the  local 
justice.  This  fact  English  officials,  accustomed  as  they 
were  to  a  settled  and  centralized  system  of  jurisprudence,- 
viewed  with  apprehensive  disapproval.  They  begrudged 
justices  of  the  peace  the  power  to  perform  marriages,  and 
insisted  that  under  no  circumstances  should  they  decide  as 
to  the  validity  of  a  title  to  real  estate.^  In  England  the 
local  magistrate,  sitting  without  a  jury,  could  decide  cases 
involving  not  more  than  forty  shillings.  Although  the 
Board  seems  not  consciously  to  have  formulated  any  rule 
in  the  matter,  this  limitation  was  extended  to  the  colonies 
where  its  enforcement  contributed  to  the  disallowance  of 
many  laws.  In  a  moment  of  weakness  the  Board  heeded 
the  urgence  of  the  governor  of  New  York  and  permitted, 
not  without  misgivings,  the  confirmation  of  an  act  confer- 
ring upon  mayors,  justices  of  the  peace  and  recorders, 
jurisdiction  in  cases  to  the  value  of  five  pounds  in  local 
money.    But  later,  when  the  amount  permitted  was  raised 

»  CO/5-1264,  Q,  37.    0:0/5-1264,  Q,  42 ;  13  January,  1714. 

''CO/5-912,  pp.  156-168,  210;  New  Hampshire,  19  November,   1706. 
CO/5-1278,  Z,  6.    A.  P.  C,  vol.  V,  p.  301 ;  Pennsylvania,  26  May,  1771. 


L^ 


l66  REVIEW  OF  COLONIAL  LEGISLATION  [584 

to  ten  pounds,  the  act  was  disallowed/  Besides  cherishing 
an  instinctive  dislike  for  arbitrary  and  partial  determina- 
tions at  law,  the  Board  was,  in  some  cases,  not  unmindful 
that  the  increased  prestige  of  the  justices  would  detract 
from  the  usefulness  and  importance  of  the  local  courts  of 
common  pleas,  whose  officials  were  appointed  by  the  crown.^ 
With  perverse  and  persistent  fondness  for  "  summary 
and  despotic  justice,"  some  of  the  colonies  empowered 
judges  of  the  local  courts  to  decide  without  jury  cases  in- 
volving considerable  sums.  But  here  again  the  law  officers 
cited  the  English  limit  of  forty  shillings  sterling  and  ob- 
jected to  larger  amounts  unless  either  of  the  parties  could 
upon  request  obtain  a  jury.  An  act  of  South  Carolina 
which  empowered  judges  of  the  circuit  courts  to  determine 
in  a  summary  way  all  disputes  cognizable  in  their  courts 
for  any  sum  not  exceeding  twenty  pounds  sterling,  was  dis- 
allowed notwithstanding  a  provision  that  cases  involving 
land  titles  should  be  excepted,  and  that  both  parties,  or 
either  party  at  his  own  expense,  could  secure  a  jury.^ 
North  Carolina  conferred  upon  the  judges  of  county  courts, 

*  CO/5-1070,  Oo,  13,  Oo,  18.  CO/5-1129,  p.  149;  14  November,  1759. 
A.  P.  C,  vol,  V,  p.  285 ;  9  December,  1770.  In  like  manner  New  Jersey- 
enjoyed  for  some  years  a  five-pound  limit,  and  attempted  in  vain  to 
raise  the  amount  to  ten  pounds.  CO/5-999,  p.  232.  A.  P.  C,  vol.  v,  p. 
309;  7  June,  1771.  After  considering  a  law  of  Massachusetts  entitled 
"  Fence  for  Cattle,"  the  committee  decided  in  1683  that  controversies 
under  the  value  of  forty  shillings  could  be  decided  by  a  justice  of  the 
peace.  C.  5".  P.,  1681-5,  p.  415.  A.  P.  C,  vol.  v,  p.  329;  Bahamas,  15 
January,  1772. 

^  A.  P.  C,  vol.  iv,  p.  407.  B.  T.  I.,  vol.  Ixv;  Georgia,  22  No- 
vember, 1758.  This  act  gave  an  exclusive  jurisdiction  over  cases  of 
less  than  ten  pounds  sterling  to  justices  of  the  peace.  CO/5-372,  I,  66; 
;South  Carolina,  13  February,  1750. 

»  CO/5-404,  p.  383.  A.  P.  C,  vol.  V,  p.  166;  7  October,  1768.  CO/5- 
"979,  P-  37;  New  Jersey,  disallowed  7  June,  1771.  CO/5-304,  K.  63; 
.North  Carolina,  3  February,  1775. 


585]  POLICY  IN  REVIEW  167 

whom  the  Board  characterized  as  ignorant  and  unfit,  a 
power  over  the  settlement  of  estates  and  the  care  of  orphans 
— an  encroachment  upon  chancery  "  not  warranted  by  any 
law  or  similar  practice  in  this  Kingdom."  ^ 

In  like  manner  the  government  regarded  with  disfavor 
attempts  to  discourage  litigation  in  appellate  courts.  To 
the  general  features  of  a  judicial  system  in  North  Carolina 
which  included  county  and  district  courts,  the  latter  having 
jurisdiction  over  civil  cases  involving  more  than  ten  pounds 
current  money,  the  Board  gave  its  approval.^  But  when 
Virginia  raised  the  limitation  upon  the  original  jurisdiction 
of  her  superior  court  from  ten  pounds  to  twenty,  and  im- 
posed a  new  prohibition  upon  appeals  in  cases  under  ten 
pounds,  the  act  was  disallowed,  upon  the  ground  that  it 
would  cause  great  inconvenience  and  detriment  to  his  maj- 
esty's trading  subjects.^  A  law  of  New  York  which  limited 
the  jurisdiction  of  the  supreme  court  to  sums  exceeding 
fifty  pounds,  was  annulled  with  the  comment  that  it  was 
"directly  counter  to  the  judicial  policy  of  this  country."  * 
The  home  government  was  no  doubt  guiltless  of  any  desire 
to  encourage  needless  litigation.  The  law  officers  well  real- 
ized that  only  through  able  courts  of  review  could  the  errors 
and  eccentricities  of  untrained  judges  and  justices  be  cor- 
rected, and  a  fair  conformity  with  decisions  of  other  colo- 
nies and  the  mother  country  be  secured.  As  Jackson  ob- 
served,  where  probably  more  than   one  hundred   judges 

*  CO/5-324,  pp.  299,  304,  306;  14  April,  1759. 

'  A.  P.  C,  vol.  iv,  p.  502,  This  was  disallowed  upon  other  grounds, 
December  14,  1761. 

'  A.  P.  C,  vol.  iv,  p.  139;  31  October,  1751. 

^  A.  P.  C,  vol.  V,  p.  284;  9  December,  1770.  A  like  fate  befel  an  act 
of  New  York  which  prescribed  a  minimum  of  twenty  pounds  current 
money  and  costs.  But  this  law  was  also  objectionable  in  that  it  gave 
the  court  no  power  to  extend  a  limited  time  allowed  the  parties  for 
pleading,     CO/5-1124,  pp.  57,  109;  26  May,  1719. 


l68  REVIEW  OF  COLONIAL  LEGISLATION  [586 

were  to  determine,  each  according  to  his  own  notions  of 
justice,  the  laws  of  a  country  could  be  neither  uniform  nor 
certain.^ 
r  Eighteenth  century  England  was  at  best  suspiciously  tol- 
erant of  foreigners.  The  benefits  of  naturalization  were 
limited  to  Protestants,  and  could  be  obtained  only  by  virtue 
ofja  special  act  of  Parliament.^  Nor  could  any  unnatural- 
ized alien,  unless  he  received  letters  of  denization  from  the 
crown,  acquire  or  give  title  to  real  estate.  Similar  restric- 
tions, it  was  assumed,  ran  against  foreigners  in  the  colo- 
nies. Moreover,  the  government  by  enacting  in  the  navi- 
gation laws  that  no  alien  not  naturalized  or  made  a  free 
denizen  should  exercise  the  trade  of  a  merchant  or  factor 
in  the  plantations,  sought  to  discourage  unnaturalized  for- 
eigners from  settling  there.  Despite  these  restrictions, 
many  aliens  not  only  migrated  to  the  colonies,  but  also  en- 
gaged in  trade  and  acquired  an  equitable  title  to  lands. 
Under  these  circumstances  the  necessity  for  some  settled 
and  inexpensive  method  of  naturalization  was  patent.  The 
colonists  assumed  that  a  power  of  granting  naturalization 
corresponding  to  that  exercised  by  Parliament  in  England^ 
was  vested  in  the  assemblies,  and  enacted  laws  prescribing 
the  conditions  under  which  the  privilege  would,  upon  appli- 
cation, be  granted  to  individuals  by  a  special  act  of  the 
assembly.  A  Virginia  law  passed  in  1671  provided  that 
"  any  stranger  desiring  to  make  this  country  the  place  of 
their  constant  residence,"  could,  upon  petitioning  the  grand 
assembly  and  taking  the  oaths  of  allegience  and  supremacy, 
be  admitted  to  naturalization,  which  was  to  confer  all  the 
privileges  of  which  a  natural-bom  Englishman  was  cap- 

» A.  P,  C,  vol.  V,  p.  309.    CO/5-979,  p.  185.    CO/s-304  p.  59. 
1^ Except,  during  the  period  from  1709  to  1712,  when  a  general  act 
for  naturalizing  foreign  Protestants  upon  their  taking  the  oaths  and 
receiving  the  Sacrament  in  any  Protestant  church,  was  in  force. 


587]  POLICY  IN  REVIEW  169 

able.^  But  the  act  which  was  drafted  in  England,  sent  over 
by  Culpeper  and  accepted  by  the  assembly  in  1680,  took 
this  power  from  the  legislature  and  vested  it  in  the  gover- 
nor, and,  with  a  view  to  the  enforcement  of  the  acts  „ol . 
trade,  provided  that  nothing  therein  should  be  construed  to 
extend  any  privileges  contrary  to  the  laws  of  England.„^, 
This  arrangement  was  continued  by  an  act  passed  in  1707, 
notwithstanding  an  objection  from  Attorney  General  Mon- 
tague that  it  was  "  too  great  a  power  to  be  lodged  in  any 
one  person  .  .  .  though  he  be  governor,  to  make  aliens  and 
foreigners  to  be  upon  the  same  foot,  as  the  natural-bom 
subjects  are."  *  In  the  other  colonies  the  assemblies  passed 
acts  from  time  to  time  for  naturalizing  foreigners,  or  for- 
eign Protestants,  then  resident.  Although  these  laws  were 
generally  allowed  to  remain  in  force,  the  Board  several 
times  expressed  doubts  concerning  their  propriety,  and 
upon  the  basis  of  a  ruling  by  the  attorney  and  solicitor,  it 
assumed  that  they  conferred  no  benefit  outside  the  limits 
of  the  province.*  To  settle  doubts  and  define  the  powers 
of  the  assemblies  in  the  matter,  Parliament  passed  an  act 
in  1740  which  authorized  the  naturalization  of  foreign 
Protestants  in  the  colonies.  As  the  requisites  for  eligibility, 
it  imposed  a  residence  of  seven  years  without  an  absence 
of  more  than  two  months  at  a  time,  taking  the  oaths  of 
allegiance  and  supremacy,  making  the  declaration  and,  with 
the  exception  of  Quakers  and  Jews,  receiving  the  sacrament 

*Henmg,  vol.  ii,  p.  289. 

'Hening,  vol.  ii,  p.  464. 
^-•^0/5-1363,  p.  226;  20  August,  1707. 

*  Report  of  the  Board  upon  letters  of  denization  granted  by  Gover- 
nor Fletcher,  CO/5-72S,  p.  391 ;  27  October,  1698.  This  was  based  upon 
a  former  opinion  by  Chief  Justice  North.  Opinion  of  the  attorney 
general  upon  an  act  of  New  Jersey,  CO/5-995,  P-  450 ;  10  December, 
1718.    B.  T.  J.„  vol.  xlv,  p.  29;  2  March,  1736. 


V 


jyo  REVIEW  OF  COLONIAL  LEGISLATION  [588 

of  the  Lord's  Supper  in  some  Protestant  and  reformed 
congregation/ 

The  uncertain  validity  of  land  titles  derived  from  aliens 
who  had  acquired  possession  without  being  naturalized, 
caused  much  complaint  in  some  colonies.  New  York, 
Pennsylvania,  North  Carolina  and  New  Jersey  all  made 
one  or  more  attempts  to  confirm  such  titles  by  blanket  laws. 
Although  the  Board  conceded  the  inherent  justice  of  these 
acts,  it  could  hardly  condone  so  sweeping  a  dispensation 
from  the  consequences  of  a  settled  point  of  law.  More- 
over, they  deprived  the  crown  of  a  right  to  escheat  lands 
held  by  deceased  aliens.  Several  acts  for  this  purpose 
appear  to  have  remained  in  force  despite  objections  from 
the  law  officers,  and  one  such,  a  law  of  New  Jersey  which 
secured  persons  holding  real  estate  under  purchase  of  aliens 
from  any  possible  defect  of  title,  was  confirmed  in  1772, 
"  His  Majesty  waiving  his  right  of  escheat  for  the  sake 
of  quieting  possessions."  ^  Soon  after,  however,  the  gov- 
ernment took  this  troublesome  subject  from  the  discretion 
of  the  assemblies  by  issuing  a  general  instruction  to  the 
governors  against  assenting  to  any  act  for  the  naturaliza- 
tion of  aliens,  or  for  establishing  a  title  to  real  estate  orig- 
inally granted  to,  or  purchased  by,  aliens  antecedent  to 
naturalization.^ 

1  Pickering,  Statutes,  vol.  xvii,  p.  370,  ch.  vii,  1740.  Quakers  were 
allowed  to  subscribe  to  a  declaration  of  fidelity,  and  an  act  of  Penn- 
sylvania which  extended  this  privilege  to  all  Protestants  having  con- 
scientious scruples  against  taking  oaths,  in  other  words  to  the  Mora- 
vians, was  confirmed.    A.  P.  C,  vol.  iv,  p.  21 ;  17  December,  1746. 

»  A.  P.  C,  vol.  v,  p.  379;  I  September,  1772.  Report  of  the  attorney 
general  upon  an  act  of  New  York,  CO/5-1123,  p.  499;  27  January,  1718. 
B.  T.  /.,  vol.  xxii;  19  February,  1718.  Lamb  upon  an  act  of 
North  Carolina,  CO/5-300,  F,  5 ;  28  October,  1764.  Lamb  upon  an  act 
of  Pennsylvania,  which  was  disallowed  September  2,  1760,  00/5-1275, 
W,  45.    CO/5-1076,  p.  419;  New  York,  1771.    CO/5-1074,  p.  457. 

^  A.  P.  C,  vol.  V,  p.  552;  19  November,  1773.  B.  T.  J.,  vol.  Ixxx,  p. 
141. 


589]  POLICY  IN  REVIEW  171 

In  like  manner  the  assemblies  assimied  and  lost  a  juris- 
diction in  regard  to  questions  of  divorce.  The  common 
law,  although  it  recognized  as  valid  an  agreement  of  sep- 
aration between  a  husband  and  wife,  afforded  no  facili- 
ties for  divorce.  Gradually,  however,  there  had  grown 
up  in  England  a  regular  procedure  by  virtue  of  which 
those  who  could  afford  the  expense  were  able  to  secure 
divorces  by  act  of  Parliament.  Such  bills  were  intro- 
duced in  the  Lords  and  heard  by  them  practically  as  a 
judicial  matter.  The  petitioner  was  obliged  to  produce 
ujK>n  oath  a  definitive  sentence  of  divorce  "  a  mensa  et 
thoro  "  obtained  at  his  suit  in  the  ecclesiastical  courts, 
while  at  the  second  reading  he  must  attend  and,  if  the  house 
saw  fit,  be  examined  at  the  bar.^ 

The  first  colonial  act  of  divorce  was  passed  by  Jamaica 
in  1739.  When,  after  careful  examination,  the  Board 
found  that  no  previous  action  had  been  commenced,  nor 
had  any  verdict  for  adultery  been  obtained  at  common  law, 
as  was  the  custom  in  England,  and  that  the  fact  of  adul- 
tery had  not  been  positively  proved,  it  concluded  that  the 
legislature  had  not  "conformed  itself  to  the  usual  practice 
in  acts  of  this  nature  in  Great  Britain,"  and  urged  that  the 
law  be  disallowed.^  The  colonies  enacted  in  all  at  least  a 
dozen  acts  of  divorce.  In  the  four  years  preceding  1760 
Massachusetts  alone  sent  seven.  The  majority  of  these 
were  granted  to  women  because  of  adultery  committed  by 
the  husband,  a  concession  as  yet  unknown  in  England, 
where  no  wffe  obtained  a  divorce  by  act  of  Parliament 
until  1 80 1.     None  were  accompanied  by  adequate  proof  of 

*  Blackstone,  bk,  i,  p.  441,  note  26.  Bryce,  "Marriage  and  Divorce" 
in  Essays  in  Anglo-American  Legal  History,  vol.  iii,  p.  823. 

^  A.  P.  C,  vol.  iii,  p.  681.  This  act  *' To  Dissolve  the  Marriage  of 
Edward  Manning  and  Elizabeth  Moore,  and  enable  him  to  marry 
again  "  was  disallowed  July  16,  1741. 


1^2  REVIEW  OF  COLONIAL  LEGISLATION  [590 

wrong-doing,  while  all  were  defective  in  that  they  dissolved 
the  marriage  and  conferred  the  privilege  of  re-marrying 
with  reference  to  only  one  of  the  parties  to  the  original 
contract/  These  acts  were  not  disallowed  because  it  was 
presumed  that  the  parties  released  might  have  re-married. 
But  the  Board  was  strongly  of  the  opinion  that  no  colonial 
legislature  had  a  power  of  passing  laws  of  this  nature,  and 
that  they  were  consequently  "of  themselves  null  and  void." 
The  whole  question  was  referred  to  the  attorney  and  solic- 
itor general,  with  the  suggestion  that  proper  instructions 
be  formulated  for  regulating  the  conduct  of  the  governors 
in  like  cases.  But  the  law  officers  failed  to  report,  and 
there,  for  the  time  being,  the  matter  rested.^ 

In  1770  the  Board  received  the  first  of  several  acts  from 
New  Hampshire,  New  Jersey  and  Pennsylvania.  Jackson, 
who  had  recently  become  king's  counsel,  pronounced  these 
laws  to  be,  in  proper  cases,  "  as  agreeable  to  those  of  Eng- 
land as  might  be,  the  circumstances  considered."  He  took 
advanced  ground  by  urging  the  reasonableness  and  expe- 
diency of  allowing  the  dissolution  of  marriage  by  a  sanc- 
tion equivalent  to  that  which  had  given  it  validity,  at  the 
same  time  suggesting  that  the  matter  be  referred  to  the 
attorney  and  solicitor  general.'  The  Privy  Council,  how- 
ever, regarded  recent  encroachments  upon  the  part  of  the 
assemblies  with  marked  disfavor.  Failing  to  receive  any 
report  from  the  law  officers,  it  disallowed  an  act  of  Penn- 
sylvania to  the  end  that  it  should  be  thought  "  that  acts  of 
Divorce  in  the  Colonies,  more  especially  when  there  does 
not  appear  to  have  been  any  suit  instituted  in  any  ecclesias- 
tical court  nor  any  verdict  in  any  court  of  Common  Law, 

»  CO/s-888,  li,  3  and  4-    CO/5-919,  P-  n;  3I  July,  1759-    CO/5-918, 
pp.  486-490.    Dickerson,  Am.  Col.  Govt,  p.  260,  note  606. 
•  Board  report,  CO/5-91S,  p.  489 ;  1758. 
»  CO/S-1278,  Z,  I ;  10  August,  1770.    A.  P.  C,  vol.  v,  p.  365. 


591  ]  POLICY  IN  REVIEW  173 

are  either  improper  or  unconstitutional."  ^  This  was  fol- 
lowed by  general  instructions  forbidding  the  governors' 
assent  to  any  acts  for  divorce,  as  well  as  for  naturalization, 
or  the  confirmation  of  land  titles  derived  from  unnatural- 
ized aliens. 

1  A.  P.  C,  vol.  V,  p.  366.    Pa.  Stats.,  vol.  viii,  p.  599;  7  April,  1773. 


CHAPTER  VI 

The  Policy  of  the  British  Government  in  Legisla- 
tive Review  :  Attitude  Toward  Encroachments 
UPON  the  Prerogative 

■.     The    third    major    objection    which    the   government 
^frequently  made  to  colonial   laws   was    that   they   ''  en- 
-^croached  upon  the  prerogative."     Like  the  phrase  "  re- 
pugnant to  the  laws  of  England,"  this  also  was  loosely 
applied  to  cover  a  multitude  of  irregularities;  an  inclu- 
:siveness  due  in  part  to  a  largeness  and  vagueness  of  con- 
jcept.     For  the  term  "prerogative"  was  made  to  convey 
not  only  the  sum  of  legal  rights  and  privileges  inherent 
in  the  British  executive,  but  also  by  implication,  a  sense 
of  the  dignity  and  divine  aloofness  of  the  sovereign.     It 
was  invoked  against  laws  which  threatened  to  impair  the 
\  necessary  and   proper  supremacy  of   the  crown   in   the 
;i  colonies,  and  to  decrease  the  due  sense  of  subordination 
I  and  dependence  upon  their  part,  which  was  consequent 
;  to  it.     The  prerogative  served  as  a  convenient  barrier 
\  against  the  increeping  of  liberal  ideas,  and  could  always 
1  be  used  to  justify  the  refusal  of  measures  which  in  any 
I  way  threatened  to  alter  the  settled  order  of  government 
or  to  change  the  political  status  quo. 

The  government  objected  consistently  to  legislation 
which  was  detrimental  to  the  material  interests  or  prop- 
erty of  the  crown.  It  insisted  that  the  proceeds  from 
all  fines  and  forfeitures  be  reserved  to  his  majesty, 
although  the  legislature  could  specify  the  manner  and 
174  [592 


593]  POLICY  IN  REVIEW  1^75 

purpose  of  their  expenditure.'  In  the  settlement  of 
estates,  debts  due  the  crown  must  be  given  a  priority  to 
all  others ;  and  any  disregard  for  his  majesty's  right  of 
escheat  was  deemed  an  infringement  upon  the  royal  pre- 
rogative.' 

Enactments  regarding  the  collection  of  quit  rents  most 
frequently  brought  the  assemblies  into  conflict  with  the 
pecuniary  interests  of  the  crown.  Indeed,  so  jealous  was 
the  home  government  of  encroachment  in  this  direction, 
that  it  allowed  comparatively  few  of  the  numerous  quit- 
rent  laws  submitted  to  go  into  operation.  Against  these 
acts  it  was  commonly  objected  that  under  color  of  regu- 
lating quit  rents  they  confirmed  large  grants  of  land  to 
favored  persons,  that  the  collection  of  rents  was  ill  pro- 
vided for,  to  the  encouragement  of  default  and  evasion, 
and  that  the  values  of  subsisting  rents  were  needlessly 
diminished.3  Several  acts  placed  the  crown  under  diffi- 
culties in  the  recovery  of  forfeitures  and  arrears.  A  law 
of  Maryland,  for  example,  provided  that  no  orphan 
should  be  sued  in  action  of  debt  for  arrears  until  five 
years  after  attaining  his  majority."*  An  act  of  Virginia 
did  away  with  a  provision  for  forfeiture  after  three  years 
of  non-payment,  and  allowed  the  crown  a  double  rent 
and  one  moiety  to  the  discoverer.  Walpole,  the  auditor 
general,  thought  the  former  penalty  perhaps  too  severe, 
but  the  latter  certainly  too  lenient. ^     New  York  required 

^  CO/5-915,  p.  278.    A.  P.  C,  vol.  iii,  p.  125. 

'  CO/ 5-300,  F,  5 ;  28  October  1764.    CO/5-1074,  p.  457 ;  5  June  1770. 

^  CO/5-401,  p.  57;  South  Carolina,  i  November  1732.  CO/5-362, 
D,  18.  B.  T.  I.,  vol.  xlvii,  p.  53.  CO/5-402,  p.  94;  Georgia,  28  Febru- 
ary 1744. 

*  CO/s-727,  p.  96.  B.  T.  J.,  vol.  XX,  p.  402.  Disallowed  25  November 
1708. 

•CO/5-1319,  O,  35;  13  June  1723. 


1^6  REVIEW  OF  COLONIAL  LEGISLATION  [594 

all  actions  for  recovery  to  be  prosecuted  in  the  superior 
court,  thereby  depriving  the  crown  of  its  right  to  sue  in 
chancery/     Other    laws    permitted    payment    in    paper 
money  or  rated  commodities,  although  the  rents  were 
reserved  in  sterling  or  proclamation  money.""     The  atti- 
tude of  the  government  toward  quit  rent  acts  was  well 
summarized  by  the  lords  commissioners  of  the  treasury 
when  they  reported  that  a  law  of  South  Carolina  was 
prejudicial  to  revenue,  and  "not  proper  for  approbation, 
the  whole  tenor  thereof   Encroaching  upon   the   Royal 
Prerogative."  3 
/     Second   only   to    the    crown's    apprehension    for    the 
/  security  of  its  revenue,  was  the  solicitude  displayed  re- 
\  garding   encroachments   upon   its   dignity  or   privilege. 
/  Thus,  a  law  of  recognition  passed  as  an  act  of  fidelity 
I  after  the  accession  of  a  sovereign  was  considered  pre- 
tsumptuous  and  unnecessary.*     For  similar  reasons  the 
Board  disliked  to  have  the  assemblies  enact  as  law  clauses 
from  his  majesty's  commission  to  the  governor.     An  at- 
tempt of  Virginia  to  explain  and  amend  a  royal  charter 
was  declared  "unwarrantable,  and  highly  prejudicial  to 
His  Majesty's  authority."  ^     And  because  of  his  majesty's 

*  CO/5-1126,  p.  279;  23  May  1745.    CO/5-371,  H,  75. 

"  CO/5-1519,  O,  35;  Virginia,  15  June  1723.  An  act  of  South  Carolina 
made  the  rents  payable  in  produce  at  a  rate  to  be  fixed  by  three  persons 
appointed  by  the  governor  and  council,  and  three  to  be  appointed  by  the 
assembly.  CO/5-400,  p.  285.  CO/5-323,  p.  285;  14  November  1731. 
CO/s-323,  p.  273;  North  Carolina,  26  June  1740.  B.  T.  /.,  vol.  Ixix, 
p.  312;  Virginia,  16  December  1762. 

'CO/s-401,  p.  57;  I  November  1732. 
^^/^ttorney  General  Harcourt  upon  an  act  of  Maryland,  Chalmers, 
Opinions,  p.  332;  17  December  1707. 

'CO/5-1328,  W,  150.  A.  P.  C,  vol.  iv,  p.  257;  21  January  1754-  But 
a  later  act,  enlarging  the  jurisdiction  of  a  court  beyond  the  limitations 
established  by  a  borough  charter,  was  confirmed.  CO/5-1331,  Z,  88. 
CO/5-1332,  Aa,  5;  26  June  1767. 


I 


595]  POLICY  IN  REVIEW  177 

undoubted  right  of  "  giving  motion  to  his  own  royal 
bounty,"  the  king's  counsel  went  so  far  as  to  suggest 
that  no  laws  affecting  the  rights  of  the  crown  should  be 
passed  by  a  colonial  assembly  without  the  royal  assent 
having  been  first  obtained/ 

Many  laws  encroached  upon  the  prerogative  in  that 
he  colonists  presumed  to  regulate  in  acts  of  the  legis- 
jlature  matters  which,  by  virtue  of  English  precedent  or 
the  governor's  commissions  belonged  to  the  sole  discre- 
tion of  the  executive.  Upon  this  ground  the  govern- 
ment objected  when  acts  establishing  schools  or  colleges 
failed  to  give  the  crown,  through  its  governor,  a  custom- 
I  ary  right  of  visitation ;  ^  and  as  well,  when  South  Caro- 
lina intrusted  the  oversight  of  her  fortifications,  a  task 
imposed  upon  the  governor  by  his  commission,  to  com- 
missioners of  their  own  choosing.^  Despite  the  insertion 
of  clauses  saving  his  majesty's  right,  Virginia  lost  several 
laws  which  authorized  local  communities  to  initiate  fairs 
or  markets,  the  power  to  do  this  being  "  undoubtedly  a 
branch  of  the  Royal  Prerogative,"  by  **  commission 
vested  in  the  governor."'* 

*  Jackson  upon  laws  validating  the  titles  of  aliens  to   real   estate, 

CO/5-1074,  p.  457.    CO/5-979,  p.  49. 

j^flTwo  acts  for  incorporating  Harvard  College  were  disallowed  for  this 
•reason,  and  also  a  Maryland  law  which  was  additional  to  an  act  for 

erecting  free  schools.    Acts  and  Resolves,  vol.  i,  p.  39,  ch.  x.    B.  T.  J., 

vol.  viii,  p.  II.     CO/5-908,  pp  53,  124;  3  February  1699.    C.  S.  P.,  1693-6, 

p.  636;  4  January  1696. 

'CO/5-233,  p.  70;  15  November  1750. 

M.  P.  C,  vol.  iv,  p.  138;  31  October  1751.  CO/5-1327,  W,  56. 
CO/5-1326,  V,  93.  CO/5-1329,  X,  24.  A.  P.  C,  vol  V,  pp.  163;  12  Au- 
gust 1768.  The  laws  disallowed  were  also  objectionable  in  that  they 
granted  to  persons  attending  such  fairs  an  exemption  from  arrests, 
attachments  and  executions,  except  for  capital  offences  or  breach  of 
the  peace.  The  conferring  of  so  sweeping  an  immunity  was  considered 
repugnant  to  the  laws  of  England. 


lyS  REVIEW  OF  COLONIAL  LEGISLATION  [596 

The  power  to  grant  letters  of  incorporation  lay  well 
within  the  disputed  zone  between  the  domain  of  the  leg- 
islature and  the  executive.  The  Board  declared  that 
"Incorporations  should  arise  from  the  bounty  of  the 
Crown  by  letters  patent,  rather  than  by  act  of  Assembly." 
But  notwithstanding  this  opinion  they  recommended  for 
confirmation  acts  granting  incorporation  to  various  pro- 
jects of  a  pious,  charitable  or  educational  nature,  among 
which  was  a  law  of  Pennsylvania  which  made  the  over- 
seers of  the  poor  in  every  township  a  body  corporate  to 
take  real  or  personal  estates  by  deed  or  will.'  Acts  of 
South  CaroHna  and  Massachusetts,  incorporating  in  the 
one  case,  the  city  of  Charlestown,  and  in  the  other, 
establishing  a  society  for  the  propagation  of  Christian 
knowledge  among  the  Indians,  were  disallowed.  But 
in  both  cases  the  crown  based  its  refusal  upon  the  inex- 
pediency of  the  project,  rather  than  upon  any  undue  pre- 
sumption on  the  part  of  the  legislature.''  Governor 
Bernard  and  Governor  Hutchinson  both  warned  the  Board 
that  their  yielding  to  the  assembly  in  this  matter  was 
tending  to  a  prescription  against  the  king's  right  of 
granting  incorporation.  But  Jackson  was  of  the  opinion 
that  the  power  to  incorporate  had  been  vested  in  the 
general  court  by  the  Massachusetts  charter.^ 

An  act  of  New  Hampshire  which  gave  absolute  con- 

M.  P.  C,  vol.  V,  p.  103;  2  August  1750.  A.  P.  C,  vol.  iv,  p.  173; 
South  Carolina,  20  December  1752.  CO/s-403,  p.  218;  South  Carolina, 
20  December  1757.  CO/5-380,  p.  161;  15  June  1770.  CO/5-380,  p.  187; 
15  January  1772. 

By  extending  the  Bubble  act  of  1720  to  the  Plantations,  Parliament 
in  1741  forbade  the  granting  of  corporate  privileges  for  business 
purposes. 

'CO/5-400,    p.    164;    19    June    1723.    Chalmers,    Opinions,    p.    395. 
A.  P.  C,  vol.  V,  p.  559;  20  May  1763. 
»  CO/5-891,  LI,  33 ;  12  April  1762.    CO/S-894,  P-  3^5 ;  8  May  1772. 


597]  POLICY  IN  REVIEW  179 

trol  over  the  person  and  property  of  lunatics  to  local 
overseers  of  the   poor  and   select   men  was  disallowed 
because,  without  notice  or  care  of  the  royal  prerogative, 
it  deprived  the  crown  of  privileges  enjoyed  under  Eng- 
lish law.     There  custody  was  obtained  by  a  commission 
issued  upon  application  to  his  majesty  from  a  court  of 
chancery;  and  the  yearly  value  of  lands  owned  by  subjects 
born  in  lunacy  was  reserved  to  the  crown.     But  the  re- 
peal of  the  New  Hampshire  act  miscarried,  and  the  law 
remained  in  force  until  amended  many  years  later.     The 
Privy  Council  not  only  disallowed  the  amendatory  act, 
but  also  ordered   the  Board  of  Trade  to  insert  in  the 
commissions    of    all    governors    a    clause    giving    them 
power,  as  chancellors,  to  issue  commissions  for  the  cus- 
tody of  lunatics.^     Another  act  of  New  Hampshire,  for 
regulating   the   manufacture   of   potash,  was  disallowed 
because  it  tended  to  establish  a  monopoly — a  privilege 
conferred  only  by  letters  patent;  while  a  law  of  Jamaica 
providing  for  the  stamping  and  issuing  of  money,  and 
making  the  counterfeiting  thereof  high  treason,  was  held 
to  have  established  a  mint — a  power  which  had  never 
been  delegated  to  any  of  the  American  colonies.^' 
/     The  crown  was  particularly  jealous  of  encroachments 
^  upon  its  power  to  reprieve  or  pardon.     In  laws  objec- 
/  tionable   upon   this   score,    New  Jersey  twice   extended 
I  amnesty  to  persons  concerned  in  disorders,  without  even 
/  excepting  any  who  might  be  guilty  of  high  treason,  the 
I   pardoning  of  which  was  reserved  to  his  majesty  by  in- 
1  struction.3     And  in  an  act  granting  compensation  to  the 

*  CO/5-915,  pp.  163,  172;  27  August  1718.    A.  P.  C,  vol.  V,  p.  189 
26  May  1769. 

M.  P.  C,  vol.  V,  p.  159;  12  August  1768.    A.  P.  C,  vol.  iv,  p.  455 
20  May  1760. 

^■*  N,  Y.  Col.  Docs.,  vol.  V,  p.  46;  28  June  1708.    CO/s-ggy,  pp.  208-344 
June  1750. 


l8o  REVIEW  OF  COLONIAL  LEGISLATION  [598 

sufferers  from  the  riots  in  Boston  incident  to  the  stamp 
act,  Massachusetts  unwarrantably  incorporated  a  pardon 
to  all  concerned.^  Equally  objectionable  were  acts  in 
which  the  assembly  without  exercising  the  power  them- 
selves, nevertheless  limited  the  crown's  opportunity  for 
doing  so.  This  they  did  by  enacting  that  a  penalty  should 
be  exacted  without  benefit  of  pardon,  or  that  offenders 
who  failed  after  proclamation  to  surrender  themselves 
might  be  killed  by  any  person  at  sight.^ 

If  In  many  cases  laws  were  considered  inimical  to  the 
prerogative  in  that  they  injured  the  standing  and  inter- 
ests of  patent  officers  by  regulating  and  prescribing  their 
duties,  or  by  depriving  them  of  power  or  income.  Offi- 
y  cers  of  the  customs  were  frequent  sufferers  from  legis- 
lative aggression.  Massachusetts  created  a  provincial 
naval  office  with  a  general  supervision  over  local  ship- 
ping.3  Massachusetts  and  Pennsylvania  both  attempted 
to  establish  ports  of  entry,  a  power  vested  in  the  lord 
high  treasurer  and  his  subordinates  by  act  of  Parliament;  ♦ 
while  Virginia  sought  to  impose  three  years  residence  as 
[a  qualification  for  appointment  to  local  customs  offices. ^ 
An  act  of  Pennsylvania  laid  a  penalty  upon  any  customs 
officer  who  should  clear  a  vessel  without  a  required  cer- 
tificate for  the  payment  of  lighthouse  dues,  a  provision, 
said  the  Board  of  Trade,  which  "  would  operate  to  con- 
trol a  Constitutional  officer  of  the  Crown  in  the  exercise 
of  those  duties  which  the  laws  of  trade  and  navigation 

M.  P.  C,  vol.  V,  p.  86;  13  May  1767. 
i.-'*^oard  to  Cornbury,  CO/5-1120,  p.  384;  4  February  1706.    A.  P.  C, 
vol.  V,  p.  317;  West  Florida,  15  January  1772.    A.  P.  C,  vol.  v,  p.  336; 
North  Carolina,  22  April  1772. 

f^B.T,  /.,  vol.  viii,  p.  11.    CO/5-906,  p.  200;  August  1695. 
«M  *  C.  5.  P.,  1700,  pp.  475,  555. 

\*  CO/5-1364,  pp.  224,  253;  31  August  1715- 


599]  POLICY  IN  REVIEW  jgi 

require  of  him." '  The  Privy  Council  disallowed  a  law 
of  North  Carolina  which  vested  the  power  of  appointing 
to  benefices  in  the  local  vestries,  notwithstanding  the 
fact  that  by  the  charter  the  right  of  patronage  was  given 
to  the  crown  and  the  king's  governor.^  An  act  of  Mas- 
sachusetts was  annulled  because  it  was  prejudicial  to  the 
office  of  the  postmaster  general,  and  to  the  rights  of 
Thomas  Neale,  who  had  been  granted  a  patent  to  estab- 
lish a  post  office  in  America.^  At  the  request  of  the 
admiralty  the  Board  complained  to  the  proprietors  of 
South  Carolina  regarding  an  act  which  subjected  officers 
and  judges  of  the  admiralty  courts  there  to  unseemly 
suits  and  penalties;^  and  it  assented  only  with  evident 
reluctance  to  acts  limiting  the  governors'  right  of  ap- 
pointment by  conferring  the  power  to  nominate  candi- 
dates for  sheriff  upon  the  county  courts,  and  as  well  to  a 
limitation  of  the  sheriff's  term  of  office,  although  its 
duration  in  England  had  been  fixed  by  an  act  of  Parlia- 
ment.5  Claiming  that  the  inhabitants  had  been  need-  , 
lessly  prosecuted  for  trivial  offences,  the  assembly  of  ] 
New  York  passed  a  law  which  forbade  the  attorney- 
general  to  institute  proceedings  save  upon  the  present- 
ment of  a  grand  jury  or  an  order  from  the  governor. 
For  each  violation  of  the  act  he  became  liable  to  a  pen- 
alty of  one  hundred  pounds  current  money,  which  could 
be  recovered  by  an  action  of  debt.  The  king's  counsel 
declared  this  "a  very  violent  and  extraordinary  attack 

^  A.  P.  C,  vol.  iv,  p.  763;  18  June  1766.    CO/5-1057,  Ee,  p.  54;  New 
York,  December  1734. 

^  A.  P.  C,  vol.  iv,  p.  408;  3  March  1759. 
\f^^cts  and  Resolves,  vol.  i,  p.  117,  ch.  iii;  November  1696. 
1^*^0/5-1289,  p.  344.    C.  S.  P.,  1702,  p.  61 ;  3  February  1702. 

*  CO/5-975,  G,  36;  New  Jersey,  30  September  1749.    A.  P.  C,  vol.  v, 
p.  166,  South  Carolina,  7  October  1768. 


l82  REVIEW  OF  COLONIAL  LEGISLATION  [600 

/Upon   the   prerogative  of  the  Crown,  the  right  of   the 
I  Attorney  General  to  file  information  having  been  dele- 
\  gated  from  the  King,  and  ever  thought  an  essential  and 
necessary  power."' 

The  governors's  instructions  impowered  them,  to- 
gether with  their  councils,  to  regulate  fees,  and  bade 
them  give  all  possible  encouragement  to  patent  officers 
in  the  enjoyment  of  their  legal  and  accustomed  privileges 
and  emoluments.  But  frequent  and  widespread  com- 
plaints that  local  officials  made  exorbitant  charges,  an 
evil  for  which  there  was  no  satisfactory  remedy  at  com- 
mon law,  were  followed  by  a  strong  popular  demand  for 
the  regulation  of  fees  by  acts  of  the  assemblies.  The 
Board  conceded  that  the  royal  instruction  did  not  pre- 
vent this,  and  almost  all  of  the  colonies  passed  laws  for 
the  purpose.  Patent  officers  in  turn  complained  that  the 
fees  prescribed  were  below  those  sanctioned  by  custom. 
But,  as  a  rule,  they  secured  the  disallowance  of  offending 
.  laws  only  when  they  suffered  obvious  and  continued  in- 
justice, for  the  Board  of  Trade  regarded  any  reasonable 
regulation  of  fees  as  a  matter  of  domestic  concern,  and 
interfered  only  when  a  lessening  of  income  threatened  to 
defeat  his  majesty's  intention  in  making  appointments.* 
In  several  instances  laws  were  disallowed  because  the 
amounts  prescribed  were  so  inconsiderable  that  they 
rendered  it  difficult  or  impossible  for  patentees  to  live 

^Chalmers,  Opinions,  p.  493.  CO/5-1054,  Dd,  76.  CO/5-1125,  p.  120; 
6  November  1728.  Many  years  later  a  less  extreme  act  for  the  same 
purpose  was  permitted  to  lie  by.  CO/5-1066,  Kk,  p.  40.  B.  T.  /., 
vol.  Ixvi,  p.  6s ;  14  February  1759.  I^Attorney  General  Harcourt  de- 
livered an  unfavorable  opinion  upon  a  similar  law  of  Maryland,  "  Recti- 
fying the  Powers  of  Attorneys,"  CO/5-716,  H,  48;  17  September  1707. 

'CO/5-672,  p.  370;  Georgia,  12  November  1755.  A.  P.  C,  vol.  iv, 
p.  311-  CO/5-324,  p.  241;  North  Carolina,  10  March  1757.  CO/5-652, 
p.  9;  Georgia,  30  December  1773. 


6oi]  POLICY  IN  REVIEW  183 

on  their  places,  and  served  to  discourage  persons  of 
character  and  reputation  from  accepting  office.' 

By  dint  of  many  complaints  and  representations,  Law- 
rence, the  Secretary  of  Maryland,  secured  an  order  from 
the  Board  which  commanded  the  assembly  to  restore  to 
his  office  the  revenue  from  ordinary  licenses,  a  perquisite 
which  it  had  enjoyed  under  Lord  Baltimore.^  The  privy 
council  prevented  the  assembly  of  South  Carolina  from 
abolishing  the  office  of  provost  marshal  by  transferring 
its  duties  to  the  sheriffs,  until  the  patentee  had  received 
security  for  the  full  value  of  his  interest  in  the  patent ; 
and  as  the  result  of  an  attempt  by  Massachusetts  to  levy 
an  income  tax  upon  the  salaries  of  customs  officers,  the 
governor  was  instructed  to  withold  his  consent  in  the 
future  from  acts  taxing  incomes  received  from  the  crown.^ 

At  no  point  did  the  crown  more  firmly  insist  upon  the 
integrity  of  the  prerogative  than  in  maintaining  its  con- 
trol over  the  assemblies.  By  their  commissions  and  in- 
structions the  governors  were  impowered  in  the  king's 
name  to  issue  writs  for  the  election  of  members,  to  desig- 
nate the  time  and  place  of  sitting,  and  to  prorogue  and 
dissolve  the  sessions  as  they  saw  fit.  But  the  colonists, 
who  were  ever  disposed  to  regard  their  assemblies  as 
local  parliaments,  sought  for  them  a  freedom  from  ex- 
ecutive control  equal  to  that  enjoyed  by  Parliament  in 
England.     To  this  end  they  passed  laws  which  prescribed 

*  CO/S-1121,  p.  455.  B.  T.  /.,  vol.  xxi,  p.  319;  New  York,  disallowed, 
15  December  1709.  CO/5-996,  p.  369.  A.  P.  C,  vol.  iii,  p.  4541  Nev/ 
Jersey,  disallowed,  3  April  1735.  CO/5-365,  F,  54,  F,  49.  CO/5-401, 
p.  202;  South  Carolina,  disallowed,  21  April  1737.  A.  P.  C,  vol.  iv,  p.  9; 
New  Jersey,  disallowed,  28  June  1749. 

^  CO/5-716,  H,  44,  56,  75,  100.    CO/5-726,  p.  487- 

M.  P.  C,  vol.  iv,  p.  59;  4  August  1748.  A.  P.  C,  vol.  v,  p.  167; 
7  October  1768.  B.  T.  /.,  vol.  Ixxvi,  p.  158.  CO/5-893,  P-  329.  B.  T.  /., 
Ixxviii,  p.  17;  30  January  1771. 


1 84  REVIEW  OF  COLONIAL  LEGISLATION  [6o2 

the  maximum  period  which  should  elapse  between  elec- 
tions and  fixed  definite  times  of  meeting,  irrespective  of 
the  governor's  writ  of  summons.  Without  exception 
these  acts  met  with  disallowance,  or  if  they  contained 
suspending  clauses,  with  refusal,  upon  the  ground  that 
\  the  right  of  calling  and  continuing  an  assembly  at  such 
(times  and  as  long  as  seemed  necessary  for  the  public 
( service  was  the  sole  prerogative  of  the  crown.'  By  an 
amendment  to  a  revenue  law,  Jamaica  attempted  to  ob- 
tain the  crown's  acquiesence  to  an  annual  sitting;  while 
North  and  South  Carolina  each  ventured  a  biennial  act.* 
Far  more  numerous  were  the  laws  modeled  upon  the 
contemporary  rule  in  regard  to  Parliament,  which  re- 
quired that  a  session  be  held  at  least  once  in  three  years. 
New  York,  New  Hampshire,  New  Jersey,  Jamaica,  Vir- 
ginia and  Georgia  all  made  one  or  more  vain  attempts  to 
assure  themselves  of  a  triennial  assembly.^  Although 
the  assemblies  were  usually  summoned  and  dissolved 
more  frequently  than  these  laws  required,  the  Board  in- 
sisted that  no  pretence  of  right  could  be  deduced  from 
the  usage. 

The   government   required   that   members  of  the   as- 
sembly should  be  freeholders,  duly  elected  by  the  major 

^ '  Chalmers.  Opinions,  p.  343.  CO/5-323,  p.  257.  A.  P.  C,  vol.  iii, 
p.  568;  North  Carolina,  21  July  1737.  CO/5-1059,  Gg,  19.  A.  P.  C, 
vol.  iii,  p.  617;  New  York,  30  November  1738.  CO/5-1330,  Y,  83; 
Virginia,  17  May  1763.  A.  P.  C,  vol.  v,  p.  286;  Virginia,  9  December 
1770. 

*B.  T.  /.,  vol.  iv,  p.  74;  I  November  1682.    A.  P.  C,  vol.  iii,  p.  568. 

A.  P.  C,  vol.  iv,  p  141. 

•  N.  Y.  Col.  Docs.,  vol.  iii,  p.  358 ;  March  1685.  B.  T.  /.,  vol.  xxxvii, 
p.  1631  New  Hampshire,  May  1728.  CO/5-941,  p.  279;  New  Hampshire, 
9  July  1752.    A.  P.  C,  vol.  iii,  p.  343;  New  Jersey,  25  November  1731. 

B.  T.  /.,  vol.  Ixvi,  p.  108;  Jamaica,  1741.    CO/5-1330,  Y,  83;  Virginia, 
17  May  1763.    CO/5-674,  p.  347;  Georgia,  23  November  1770. 


603]  POLICY  IN  REVIEW  185 

part  of  the  freeholders  or  men  of  assured  yearly  income 
in  the  respective  townships  or  parishes/  Within  these 
bounds  the  colonists  appear  to  have  exercised  a  rather 
limited  discretion.''  Nor  were  they  allowed  to  exclude 
office  holders.  An  act  of  South  Carolina,  which  pro- 
vided that  no  person  holding  any  other  office  should 
serve  as  a  member  of  the  assembly,  was  disallowed,  partly 
for  other  reasons.^  New  York  attempted  to  disqualify 
judges  upon  the  ground  that  executive  and  legislative 
powers  ought  not  to  be  vested  in  the  same  persons. 
Judges,  it  was  urged,  could  not  sit  in  the  House  of  Com- 
mons, and  in  the  assembly  they  had  often  become  leaders 
of  factions.  The  act  was  disallowed,  nevertheless,  be- 
cause it  affected  the  prerogative,  and  did  upon  "  reasons 
not  applicable  to  the  state  of  the  colony,  make  a  very 
essential  alteration  in  its  constitution." '^  In  1773  the 
Board  conceded  to  Virginia  the  right  to  disqualify  sheriffs 
and  inspectors  of  tobacco  during  their  continuance  in 
office.  But  it  objected  to  a  clause  which  continued  their 
disability  for  two  years  thereafter.^ 

Questions  propounded  to  the  law  officers  indicate  that 
the  Board  of  Trade  was  not  certain  whether  the  enact- 
ment of  a  law  conferring  upon  a  local  community  the 
right  of  representation  in  the  assembly  conflicted  with 
the   governor's   power   to   summon   members   by  writs 

^A.  P.  C,  vol.  iv,  p.  217.  This  rule  did  not  obtain  in  South  Carolina, 
where  a  law  enacted  during  the  proprietary  regime  was  allowed  to 
continue  in  force. 

'C.  6".  P.,  1693-6,  p.  84;  South  Carolina,  12  April  1693.  CO/5-994, 
p.  204;  New  Jersey,  4  February  1706.  A.  P.  C,  vol.  iv,  p.  49;  Jamaica, 
30  June  1748. 

'  A.  P.  C,  vol.  iv,  p.  49 ;  30  June  1748. 

*  A.  P.  C,  vol.  V,  p.  244;  6  June  1770. 

^  CO/5-1369,  p.  324. 


l86  REVIEW  OF  COLONIAL  LEGISLATION  [604 

issued  in  the  king^s  name;  and,  as  well,  whether  by- 
virtue  of  that  power,  the  governor  alone  could  authorize 
the  sending  of  representatives.'  Notwithstanding  this 
uncertainty,  the  Board  seems  to  have  conceded  that  the 
assemblies  could  pass  such  laws  provided  they  did  not  so 
word  them  as  to  preclude  the  governors  from  issuing 
writs,  or  to  convey  thereby  any  other  power  than  that 
of  demanding  a  writ  .upon  proof  of  qualification.''  But, 
as  a  matter  of  fact,  the  home  government  early  became 
alarmed  at  the  continual  growth  of  membership  in  the 
lower  houses  and  forbade  the  governors  to  assent  to 
further  increase  without  the  insertion  of  a  suspending 
clause.3 

In  1742  Governor  Shirley  of  Massachusetts  com- 
plained that  the  enlarged  membership  of  the  house,  due 
to  the  continual  division  of  townships  and  the  settlement 
of  new  territory,  rendered  it  unwieldy  and  caused  it  to 
overshadow  the  council,  thereby  destroying  the  proper 
balance  between  the  two  bodies  established  by  the  char- 
ter. The  Board  concurred  in  these  views  and  instructed 
him  not  to  pass  any  further  act  erecting  a  new  township 
or  dividing  an  old  without  insisting  upon  a  suspending 
clause.  Inasmuch  as  Massachusetts  claimed  under  its 
charter  an  exemption  from  suspending  clauses  and  re- 
fused to  insert  them,  this  command  amounted  to  a  pro- 
hibition, and  the  membership  of  the  house  remained 
without  further  increase  for  several  years.**     In  1761  the 

^B,  T.  J.,  vol.  xxxviii,  p.  152;  30  May  1729.  CO/5-323,  P-  370 ; 
7  May  1753. 

^  CO/s-941,  p.  212;  3  February  1749.  A.  P.  C,  vol.  v,  p.  29.  B.  T.  /., 
Ixix,  p.  169. 

'CO/5-973,  F,  34;  New  Jersey,  26  May  1739- 

*  CO/s-883,  Ee,  70.  CO/5-918,  pp.  90-94,  109.  An  act  "  Errecting  the 
Township  of  Lincoln"  escaped  disallowance  in   1756  because  it  had 


605]  POLICY  IN  REVIEW  187 

Board  admitted  that  this  restriction  was  in  conflict  both 
with  the  charter  and  with  an  act  of  the  assembly  which 
had  been  confirmed,  by  virtue  of  which  every  township 
was  entitled  to  send  either  one  or  two  representatives, 
according  to  the  number  of  its  freeholders.  The  Board 
accordingly  withdrew  its  instruction  and  advised  the 
governor  to  obtain,  whenever  possible,  acts  conferring 
upon  newly-organized  districts  all  the  privileges  of  town- 
ships except  that  of  sending  representatives.' 

Meanwhile  the  Board  twice  interfered  to  end  local 
disputes  between  a  governor  and  an  assembly  regarding 
laws  for  the  erection  of  towns  or  counties.  New  Hamp- 
shire passed  several  acts  which  so  regulated  the  sending 
of  representatives  as  to  preclude  the  governor  from  issu- 
ing writs.  The  assembly  having  refused  to  modify  them, 
the  Board  recommended  five  laws  for  disallowance,  with 
the  expectation  that  in  their  place  the  governor  would 
issue  charters  of  incorporation.  But  the  assembly 
yielded  the  principal  points  of  contention,  and  the  afifair 
gave  place  to  more  important  concerns  of  French  and 
Indian  warfare.^  In  1754  an  act  of  North  Carolina  for 
"Ascertaining  the  number  of  Members  of  the  Assembly" 
caused  the  Board  to  take  cognizance  of  a  dispute  between 
the  northern  and  southern  counties  as  to  their  respective 
representations.  Thirteen  laws  for  erecting  counties 
were  disallowed,  and  Governor  Dobbs  was  instructed  to 
pass  only  such  acts  for  this  purpose  as  did  not  impower 

already  been  carried  into  operation.  But  a  similar  law  "  Errecting  the 
Township  of  Danvers  "  was  declared  void.  CO/5-913,  p.  330.  CO/s- 
919,  p.  II. 

^  A.  P.  C,  vol.  iv,  p.  475.  CO/5-920,  pp.  130,  140,  174-183.  CO/s-891, 
p.  349- 

''CO/5-941,  pp.  212,  226,  364.  Board  report,  CO/5-941,  p.  267; 
9  July  1752. 


l88  REVIEW  OF  COLONIAL  LEGISLATION  [606 

the  sending  of  representatives.  He  proceeded  to  grant 
charters  of  incorporation;  but  the  inhabitants  insisted 
upon  their  right  to  representation,  and  in  some  cases 
held  elections  without  writs.  There  followed  a  long 
period  of  contention  during  which  neither  side  appears 
to  have  scored  decisively;  but  the  plan  of  incorporation 
proved  by  no  means  a  success.^ 

In  1767  the  Board  made  a  strong  representation  in  re- 
gard to  the  enactment  of  laws  operating  "  to  the  augmen- 
tation and  Encrease  of  the  Representative  Body  [and] 
leading  to  .  .  Inconveniences  .  .  .  found  to  arise  from  the 
Encreasing  Greatness  and  Disproportion  of  the  number 
of  that  Branch  of  the  legislature."  The  Privy  Council, 
perforce,  allowed  eighteen  acts  of  Massachusetts  for 
erecting  townships,  to  lie  by;  but  three  laws  from  New 
Hampshire,  Nova  Scotia  and  South  Carolina  it  dis- 
allowed. Furthermore  an  instruction  strengthening  the 
control  of  the  executive  over  the  legislature,  already 
issued  to  some  colonies,  was  made  general.  Henceforth 
governors  were  not  upon  any  pretence  to  assent  to  a 
law  by  which  the  number  of  the  assembly  was  enlarged 
or  diminished,  the  duration  of  it  ascertained,  or  the  qual- 
ification of  the  electors  or  the  elected,  fixed  or  altered. "* 
Nothing  could  reveal  more  plainly  the  distrust  and  ap- 
prehension with  which  the  government  viewed  the 
** leveling  tendencies"  at  work  in  the  colonies,  and  the 
alarm  with  which  it  noted  the  continual  encroachments 
made  upon  the  prerogative  by  the  only  branch  of  the 
provincial  governments  which  was  responsive  to  popular 
sentiment. 

^  CO/5-323;  14  March  1754.  B.  T.  I.,  vol.  Ixii;  11  April  1755- 
CO/5-297,  C,  91.  CO/5-29S,  D,  60.  CO/5-325,  C,  74.  CO/s-297, 
E,  52.    B.  T.  J.,  vol.  Ixix,  p.  169. 

'  B.  T.  /.,  vol.  Ixxv,  p.  16.  A.  P.  C,  vol.  v,  25-34.  ^'  Y-  Col.  Docs., 
vol.  vii,  p.  946. 


6o7]  POLICY  IN  REVIEW  189 

In  theory  the  king,  as  the  fountain  of  justice,  was  the 
source  of  authority  for  both  courts  and  judges,  and  ac- 
cordingly the  governors'  commissions  impowered  them 
to  erect  the  one  and  to  appoint  the  other.  But  in  ob- 
taining appropriations  requisite  for  the  payment  of  sala- 
ries and  the  maintenance  of  judicial  systems,  the  crown 
was  dependent,  for  the  most  part,  upon  the  assemblies. 
This  fact  goes  far  to  explain  why  the  provincial  courts 
were  established  and  regulated  by  law,  despite  the 
Board's  repeated  assertions  that  the  power  to  do  this 
was  the  unalterable  prerogative  of  the  crown.^  It  was 
assumed,  nevertheless,  that  this  privilege  was  delegated 
from  the  king  and  exercised  only  by  his  forbearance. 
Nor  could  the  assemblies  in  any  way  restrain  him  from 
constituting  courts  other  than  those  authorized  by  pro- 
vincial law  if  he  saw  fit.^  The  government  did  insist 
that  the  appointment  of  judges  and  justices  should  be 
vested  without  restraint  in  the  king,  and  not  in  the 
assembly,  or  in  the  governor  with  the  advice  of  the  coun- 
cil and  assembly.3  With  the  alleged  purpose  of  obtain- 
ing appointments  for  particular  individuals,  the  legisla- 
ture of  North  CaroHna  enacted  that  no  person  should 
become  a  judge  or  justice  save  barristers  of  five  years 
standing  in  one  of  the  Inns  of  Court  in  England,  who 
had  practiced  in  the  courts  of  that  or  some  other  colony. 
But  this  was  deemed  "  an  unconstitutional  restraint  upon 
the  power  of  appointing  judges."* 

^  ^"0/5-1314,  L,  17.  CO/5-912,  p.  169.  Acts  and  Resolves,  vol.  ii, 
p.  34,  note  on  ch.  xx.    A.  P.  C,  vol.  iv,  p.  218  Jamaica,  28  February  1754. 

*  CO/5-1362,  p.  Ill ;  Virginia,  26  March  1707. 

^  Acts  and  Resolves,  vol.  i,  p  418,  note  on  ch.  ii.  CO/5-1326,  p.  in. 
CO/S-324,  p.  300.  CO/5-305,  p.  89.  B.  T.  /.,  vol.  xliv,  pp.  177-187; 
South  Carolina.    CO/5-401,  p.  150;  11  August  1735. 

^A.  P.  C,  vol.  iv,  p.  504;  14  December  1761. 


I90  REVIEW  OF  COLONIAL  LEGISLATION  [608 

In  several  colonies  the  assemblies,  following  the  Eng- 
lish act  of  Settlement,  sought,  while  granting  judges 
permanent  salaries,  to  change  the  tenure  of  their  com- 
missions from  during  "  His  Majesty's  Pleasure  "  to  dur- 
ing "good  behavior."  When  Jamaica  led  the  way  in 
175 1  the  Privy  Council  condemned  the  change  as  one 
affecting  the  royal  prerogative  in  a  point  of  great  mo- 
ment. Even  assuming  that  there  had  occurred  any 
abuse  of  power  to  justify  such  an  innovation,  the  report 
continues,  it  were  "  more  suitable  to  Your  Majesty's 
Honor  and  dignity  to  reform  it  by  Your  own  authority, 
which  is  fully  sufficient  for  the  purpose."  ^  Acts  of  sim- 
ilar intent  from  Pennsylvania,  New  York,  North  Caro- 
lina and  South  Carolina  met  with  no  better  success.  In 
reporting  upon  the  New  York  law,  the  Board  of  Trade 
observed  :  "The  granting  of  Judges'  Commissions  during 
good  behavior  ought  to  be  discountenanced,  .  .  as  subver- 
sive of  the  Interest  of  the  Crown  and  people,  and  tending 
to  lessen  that  just  Dependence  which  the  Colonies  ought 
to  have  upon  the  government  of  the  Mother  Country." 
Following  the  disallowance  of  this  act  in  1761,  instruc- 
tions were  sent  to  all  governors  forbidding  their  assent 
to  laws  of  like  nature.^ 

In  some  instances  laws  in  regard  to  courts  were  held 
to  trench  upon  the  prerogative  in  that  they  hindered 
the  exercise  of  his  majesty's  right  of  allowing  appeals 
from  colonial  courts  to  the  King  in  Council.  Massa- 
chusetts was  bidden  to  correct  a  law  which  prevented 
appeals  in  real  actions.^     New  Hampshire  and  Maryland 

M.  P.  C,  vol.  iv,  p.  216;  28  February  1754. 

^B.  T.  /.,  vol.  Ixviii,  pp.  348,  384.  CO/5-1275,  W,  45-  A.  P.  C, 
vol.  iv,  p.  502;  North  Carolina,  14  December  1761.  A.  P.  C,  vol.  v, 
p.  166;  South  Carolina,  7  October  1768. 

'  CO/5-907,  p.  75 ;  10  December  1696. 


6o9]  POLICY  IN  REVIEW  191 

each  prohibited  appeals  in  cases  involving  less  than  three 
hundred  pounds  sterling;  and  without  objecting  to  the 
sum  named,  the  Board  nevertheless  insisted  that  no 
obstruction  should  be  placed  upon  the  royal  privilege  to 
hear  cases  of  less  value  if  the  crown  pleased/  From  a 
special  court  established  in  the  Bahamas  any  appeal  to 
the  Privy  Council  was  expressly  prohibited,  a  provision 
deemed  "altogether  inconsistent  with  the  constitution 
of  the  Colony."  =" 

/Many  laws  were  disallowed  because  in  passing  them 
/the  colonial  legislatures  had  usurped  functions  properly 
J  belonging  to  the  king's  courts  of  justice.     Such  were  the 
j  acts  by  which  Massachusetts  passed  sentence  upon  sev- 
\  eral  of  her  citizens  for  engaging  in  illegal  trade  with  the 
\hostile  French.3     Jamaica,  upon  the  other  hand,  reversed 
the  decision  of  a  court  of  law  and  declared  the  prisoner 
free."*     The   assembly  of   New   Hampshire   persisted   in 
passing  upon  the  validity  of  contested  land  titles,  a  prac- 
tice "so  unconstitutional  and  unjust"  that  in  1764  the 
Privy  Council  disallowed  sixteen  laws  at  one  time,  "  in 
order  to  deter  the  legislatures  .  .  .  from  assuming  powers 
and  taking  cognisance  of  matters  that  do  constitutionally 
belong  to  courts  of  justice  alone."  ^     The  assemblies  also 
attempted  to  redress  injuries  inflicted  upon  private  per- 
sons by  fraudulent  lotteries,  and  to  compel  performance 

^C0/S-gi2,  pp.  169,  186,  210;  New  Hampshire,  19  November  1706. 
CO/5-716,  H,  48.  CO/s-727,  p.  251.  A.  P.  C,  vol.  ii,  p.  633;  Maryland, 
14  June  1711. 

""A.  P.  C,  vol.  V,  p.  329;  1772.  C.  S.  P.,  1681-5,  p.  185;  Virginia  1682. 
CO/5-1362,  p.  III. 

*  CO/5-912,  p.  354. 

*A.  P.  C,  vol.  iv,  p.  412;  29  March  1759. 

M.  P.  C,  vol.  iv,  p.  674;  20  July  1764.  CO/5-942,  p.  266.  A.  P.  C, 
vol.  v,  p.  160.    A.  P.  C,  vol.  iv,  p.  490;  Georgia,  2  July  1761. 


192  REVIEW  OF  COLONIAL  LEGISLATION  [6io 

in  cases  of  alleged  breach  of  contract/  They  lost  no 
opportunity  of  enlarging  their  control  over  the  granting 
and  expending  of  provincial  appropriations,  thereby  ham- 
pering the  executive  in  its  appointment  of  officials  and 
conduct  of  the  government.  Massachusetts,  Barbadoes 
and  South  Carolina  all  attempted  to  supply  the  revenue 
by  means  which  deprived  the  governor  of  power  to  sign 
warrants  for  issuing  money.^  In  1751  the  Board  com- 
plained of  the  power  wielded  by  the  assembly  of  New 
York  by  virtue  of  its  practice  in  granting  supplies  for 
one  year  only,  and  of  making  salaries  payable  only  to  the 
present  incumbent  of  offices.^  South  Carolina  passed  an 
act  whereby  all  civil  officers  who  received  any  salary  from 
the  provincial  treasury  were  to  be  nominated,  appointed 
and  removed  only  by  the  general  assembly — a  provision, 
said  the  king's  counsel,  which  "  cuts  up  at  the  roots  all 
the  king's  prerogative,  and  bars  the  Crown  from  ever 
intermeddling  with  any  of  the  civil  employments."*  The 
attitude  of  the  Board  of  Trade  in  regard  to  this  whole 
matter  received  its  strongest  statement  in  a  representa- 
tion of  July  24,  1760,  upon  several  acts  of  Pennsylvania. 
In  passing  these  laws  the  assembly  had  encroached  not 
only  upon  the  power  of  the  executive,  but  also  upon  the 
material  interests  and  charter  rights  of  the  proprietors. 
After  rebuking  them  for  lack  of  firmness  in  maintaining 
their  rights,  the  Board  urged  them  to  be  mindful  in  the 
future  of  their  duty  to  restore  the  constitution  of  the 

*  A.  P.  C,  vol.  iv,  p.  684;  New  Jersey,  20  July  1764.  CO/5-1296,  p.  201 ; 
Pennsylvania,  29  April  1768.  A.  P.  C,  vol.  v,  p.  31;  Massachusetts, 
26  June  1767. 

"^Acts  and  Resolves,  vol.  ii,  p.  574.  A.  P.  C,  vol.  iii,  p.  203,  Bar- 
badoes, 1728.    A.  P.  C,  vol.  V,  p.  229;  South  Carolina,  i770- 

•CO/5-1127,  pp.  48,  216;  2  April  1751. 

*CO/5-37i,H,57. 


6ii]  POLICY  IN  REVIEW  193 

colony  to  its  proper  principles,  "  to  check  the  growing 
influence  of  the  assembly,  and  to  distinguish  what  they 
are  perpetually  confounding,  the  executive  from  the  leg- 
islative parts  of  the  government."  "  Nothing,"  said  their 
Lordships,  "is  so  likely  to  preserve  the  tranquility  of, 
the  Province  or  its  dependence  on  the  mother  country 
as  maintaining  with  a  strict  and  steady  hand  the  neces- 
sary powers  and  just  prerogatives  of  the  Cro;s5?iL  ....  It 
is  in  vain  to  negotiate  away  His  Majesty's  prerogative, 
every  new  concession  become[s]  the  foundation  of  some 
new  demand  and  that  [demand]  of  some  new  dispute."' 

y^0/S-i2gs,  pp.  295-385 ;  24  June  1760.    B.  T.  /.,  vol.  Ixvii,  p.  141. 


CHAPTER  VII 

The  Policy  of  the  British  Government  in  Legisla- 
tive Review,:  Attitude  Toward  Laws 
Deemed  Inexpedient 


( 


Aside  from  considerations  of  trade,  conformity  and 
prerogative,  the  Board  of  Trade  weighed  laws,  and 
sometimes  recommended  their  disallowance,  upon 
grounds  of  mere  expediency.  If  an  act  was  considered 
objectionable  upon  other  grounds  the  question  of  its  ex- 
pediency received,  as  a  rule,  scant  mention.  The  opinion 
of  the  Board  that  an  excessive  issue  of  paper  money  in- 
jured the  British  merchants,  for  instance,  was  paramount 
to  the  belief  that  it  was  inimical  as  well  to  the  economic 
interests  of  the  colonists  themselves. 

In  reviewing  laws  upon  certain  subjects  which  did  not 
involve  questions  of  imperial  policy,  however,  the  Board 
appears  to  have  acted  with  a  single  eye  to  the  well-being 
of  the  colonial  inhabitants.  Upon  this  ground,  for  ex- 
ample, was  based  the  consistent  disapproval  accorded 
after  1760  to  acts  authorizing  lotteries.  After  having 
accepted  these  ventures  as  a  matter  of  course,  the  Board 
came  gradually  to  discourage  their  organization  for  pur- 
poses of  private  gain,  or  for  the  accomplishment  of  un- 
important public  undertakings.  And  by  a  general  in- 
struction of  1769  their  establishment  without  previous 
consent    from    the    crown    was    prohibited    altogether.' 

1  CO/5-1068,  Mm,  61.    CO/5-921,  44.    CO/S-325,  C,  195.    CO/S-999, 
p.  185.    B.  T.  /.,  vol.  Ixxvi,  p.  48. 

194  [612 


613]  POLICY  IN  LEGISLATIVE  REVIEW  195 

The  raising  of  money  by  lottery,  said  the  Board  in  one 
of  its  representations,  "ought  by  no  means  to  be  En- 
couraged, as  obviously  tending  to  disengage  and  mislead 
Adventurers  therein  from  Industry  and  Attention  to 
their  proper  callings  and  Occupations,  and  introducing 
a  spirit  of  Dissipation  prejudicial  to  the  fortunes  of  In- 
dividuals and  the  Interests  of  the  Public."  * 

Upon  grounds  of  local  welfare  the  Board  discouraged, 
also,  acts  for  lowering  the  current  rate  of  interest.  The 
price  of  money  being  of  necessity  high  in  a  new  country, 
it  was  feared  that  a  low  return  would  prohibit  lending 
and  retard  the  economic  development  of  the  colony.* 
And  in  passing  upon  laws  in  regard  to  the  granting  of 
lands  the  crown,  apart  from  its  solicitude  for  the  security 
of  quit  rents,  sought  to  prevent  conditions  which  might 
injure  the  colonies  by  retarding  their  settlement.  To 
this  end  it  confirmed  an  act  of  New  York  for  vacating 
several  exorbitant  grants  of  land,  notwithstanding  a  most 
careful  and  elaborate  presentation  of  their  case  made  by 
the  grantees.3  Lest  all  lands  ungranted  should  "fall 
into  a  few  rich  mens'  hands  and  be  a  discouragement  to 
settlement"  it  disallowed  acts  of  Virginia  which,  by 
allowing  an  unlimited  number  of  patents  to  the  same 
person  and  neglecting  to  oblige  reasonable  cultivation, 

M.  P,  C,  vol.  V,  p.  186.  This  representation  of  March  7,  1769  was 
upon  an  act  of  Pennsylvania  for  "  Raising  by  Lottery  5,250  pounds  for 
purchasing  a  Public  Landing  and  paving  the  streets  of  Philadelphia." 
The  act  was  allowed  to  remain  in  force  because  it  had  been  carried 
into  effect;  but  its  consideration  led  to  the  general  instruction  forbid- 
ding the  future  enactment  of  similar  laws. 

^  A.  P.  C,  vol.  V,  p.  405;  New  Jersey,  20  February  1775.  A.  P.  C, 
vol.  V,  p.  159;  New  Hampshire,  12  August  1768.  A.  P.  C,  vol.  v, 
p.  282;  New  Hampshire,  9  December  1770. 

'CO/5-1044,  p.  130.  CO/5-1121,  p.  83.  B.  T.  /.,  vol.  XX,  p.  232; 
26  June  1708. 


196  REVIEW  OF  COLONIAL  LEGISLATION  [614 

would  have  entitled  the  owner  of  one  hundred  slaves  to 
take  nineteen  thousand  acres/  It  was  objected  also 
against  quit  rent  acts  of  North  Carolina,  South  Carolina 
and  Georgia  that  in  addition  to  weakening  the  security 
of  the  rents,  they  would  discourage  settlement. 

As  the  patron  of  religion,  the  government  encouraged 
the  enactment  of  laws  enforcing  the  humane  treatment 
of  slaves,  the  suppression  of  vice  and  immorality  and  the 
erection  and  maintenance  of  schools.^  At  the  instance 
of  the  Bishop  of  London^  the  Board  even  objected  to  an 
act  of  Virginia  which  relieved  youths  of  from  fifteen  to 
twenty-one  years  from  punishment  for  absenting  thern- 
selves  from  church  and  for  immorality.^  In  colonies 
which  established  the  Church  of  England,  it  insisted  that 
the  general  supervision  of  the  clergy  be  vested  in  the 
Bishop  of  London  rather  than  in  the  local  vestry,  and 
that  a  more  or  less  adequate  provision  be  made  for  min- 
isters.* In  no  colony,  on  the  other  hand,  did_  the  gov- 
ernment attempt  to  compel  the  establishment  of  the 
EngHsh  Church,  or  to  impose  tests  which  would  exclude 
dissenters  from  office.  Because  of  local  conditions  it 
permitted  Quakers  a  somewhat  more  extensive  use  of 
the  affirmation  than  in  England,  and,  when  they  were 
called  to  its  attention,  it  consistently  disapproved  of  laws 
by  which  the  dominant  sect  in  any  colony  ventured  to 
oppress  the  others. 

*  CO/5-1362,  p.  117.  B,  T.  I.,  vol.  xix,  p.  153.  This  act  for  "Grant- 
ing, Seating  and  Planting"  was  disallowed  April  17,  1707.  CO/S-1363, 
pp.  249,  266.  B.  T.  /.,  vol.  XXV,  p.  436.  CO/5-1364,  p.  375;  30  May 
1716. 

'  B.  T  /.,  vol.  iv,  p.  213.    CO/5-403,  p.  76.    CO/5-996,  p.  147.    A.  P.  C, 
vol.  iii,  p.  153. 
^^.  T.  /.,  vol.  xix,  p.  187;  26  May  1707.    CO/5-1362,  p.  232. 

*  CO/5-299,  E,  51.  CO/5-325,  p.  201;  North  Carolina,  3  June  1762. 
CO/5-305,  p.  45.    A.  P.  C,  vol.  V,  p.  100;  26  June  1767. 


6i5]  POLICY  IN  LEGISLATIVE  REVIEW  197 

Noteworthy  among  acts  of  this  type  was  that  for  the 
**  Service  of  God,  and  the  Establishment  of  the  Protestant 
Rehgion  "  which  was  thrice  disallowed  and  was  thrice 
re-enacted  by  Maryland.  By  declaring  that  the  acts 
passed  for  this  purpose  in  1692  and  1695  enacted  in  too 
sweeping  and  unwarranted  a  fashion  the  laws  of  Eng- 
land, the  government  avoided  taking  cognizance  of  the 
religious  controversy  in  the  colony/  i\  third  law,  passed 
"  without  any  material  alteration  in  anything  for  which 
the  former  had  been  disallowed,"  compelled  the  use  of 
tlie  prayer  book  and  the  administration  of  the  Sacra- 
ments according  to  the  Church  of  England,  in  all  places 
of  worship.*  Catholics  and  Quakers  protested  strongly 
"against  being  deprived  of  liberty  of  conscience  and  taxed 
for  the  maintenance  of  the  English  Church.  Mindful  of 
previous  failures,  the  Board  drafted  a  bill  "  agreeable  to 
the  toleration  allowed  here "  which  contained  a  clause 
repealing  the  law  then  in  force.  This  they  transmitted 
to  the  colony  for  enactment,  together  with  instructions 
that  meanwhile  the  present  law  "be  not  too  rigorously 
executed."  3  Shortly  after  the  colony  passed  two  acts, 
aimed  "  to  check  the  insolent  extravagences  of  priests." 
The  first  forbade  all  ministrations  by  Catholic  priests, 
while  the  second  suspended  for  the  period  of  eighteen 
months  as  much  of  the  former  as  applied  to  private 
families.  But  the  Privy  Council,  remarking  that  the 
rigorous  execution  of  such  acts  would  tend  "  to  depopu- 
late that   profitable   Colony,"    disallowed   the  first   and 

» C.  S.  P.,  1693-6,  p.  636.    CO/5-725,  p.  441- 
l^>t!:S.  P.,  1700,  p.  II.    C.  S.  P.,  1701,  pp.  26,  78.   Moreover  the  vestries 
were  made  closed  corporations  and  possessed  with  excessive  powers. 

^  B.  T.  /.,  vol.  xiii,  p.  441.  C.  S.  P.,  1701,  pp.  211,  300.  The  new  law, 
duly  enacted  and  found  agreeable  to  the  draft  sent  over,  was  confirmed. 
CO/5-726,  p.  170.    CO/5-715,  p.  71,  E,  53;  18  January  1703. 


igS  REVIEW  OF  COLONIAL  LEGISLATION  [6i6 

(ordered   the   governor  to  secure  from  the   assembly  an 

(indefinite  continuation  of  the  second/ 

In  1718  an  act  of  Virginia  containing  severe  discrimi- 
nations against  Quakers  was  disallowed  with  the  similar 
remark,  that  ''if  put  in  execution  it  would  prove  very 
injurious  to  the  Colony  by  banishing  a  great  number  of 
industrious  inhabitants." ""  With  a  like  solicitude  for  the 
rights  and  welfare  of  the  minority,  the  crown  ordered 
the  Carolina  proprietors  to  repeal  an  act  which  decreed 
that  members  of  the  assembly  should  conform  to  the 
Church  of  England. ^  And  it  several  times  intervened  in 
the  interests  of  Quakers,  Baptists  or  member  of  the 
Church  of  England  who  were  being  taxed  for  the  sup- 
port of  "  orthodox "  ministers  in  Massachusetts.^  In 
this  case  interference  was  based  upon  the  ground  that 
inasmuch  as  the  charter  granted  liberty  of  conscience  to 
all  Christians  except  Catholics,  taxes  levied  by  act  of  the 
legislature  for  the  support  of  Congregational  ministers 
in  townships  where  that  sect  constituted  a  minority  were 
unwarranted  and  illegal. 

^CO/S-715,  G,  12,  B.  T.  J.,  vol.  xviii,  p.  149.  CO/S-726,  p.  354- 
A.  P.  C,  vol.  ii,  p.  497;  3  January  1706. 

2  This  act  for  "  Prohibiting  Unlawful  assemblings  of  Quakers " 
was  passed  in  1663  and  escaped  observation  until  1718.  It  prohibited 
shipmasters  from  importing  any  Quaker  more  than  fourteen  years  of 
age,  and  forbade  Quakers  assembling  for  religious  worship,  under 
penalty  of  heavy  fines, '  and  upon  the  third  offense,  of  banishment. 
CO/5-1365,  p.  36.  CO/5-1316,  p.  44.  B.  T.  J.,  vol.  xxvii,  p.  121; 
13  February  1718. 

'  CO/5-1263,  O,  63.    A.  P.  C,  vol.  ii,  p.  506;  10  June  1706. 

*Two  acts  taxing  the  Quakers  of  Dartmouth  and  Tiverton  were 
disallowed  in  1724,  while  several  laws  prejudicial  to  the  Church  of 
England  were  allowed  to  stand  only  because  they  had  been  confirmed 
by  the  charter.  CO/5-915,  P-  400.  CO/5-878,  Bb,  157.  A.  P.  C,  vol. 
iii,  p.  491 ;  2  February  1736.  One  law  was  disallowed  upon  the  petition 
of  Anabaptist  settlers.    A.  P.  C,  vol.  v,  p.  323;  31  July  1771. 


6i7]  POLICY  IN  LEGISLATIVE  REVIEW  jgg 

In  two  instances,  however,  the  crown  acted  otherwise 
than  as  a  champion  of  tolerance.  A  law  of  West  Florida 
was  disallowed  because  it  permitted  the  free  exercise  of 
religion  to  Catholics,  "  a  sect  proscribed  by  several  acts 
of  Parliament  in  all  Dominions  of  the  Crown."  And  the 
Privy  Council  annulled  the  founding  of  a  college  under 
Presbyterian  auspices  in  North  Carolina  upon  the  re- 
commendation of  the  Board,  who,  while  sensible  of  the 
"  tolerating  spirit "  generally  prevailing  throughout  the 
dominions,  doubted  whether  it  was  advisable  "to  add 
encouragement  to  toleration"  by  assenting  to  an  estab- 
lishment which  promised  advantages  to  Dissenters.' 

The  power  of  veto  rendered  the  Crown  a  virtual 
arbiter  in  frequent  disputes  arising  from  the  conflicting 
interests  of  neighboring  colonies.  New  York  and  New 
Jersey  sought  to  adjust  a  boundary  controversy,  first  by 
an  informal  agreement  embodied  in  an  act  of  New  Jersey, 
and,  failing  in  this,  by  a  law  of  New  York  which  submit- 
ted the  matter  to  his  majesty  for  final  determination. 
But  the  Crown,  solicitous  both  for  the  security  of  private 
property  and  for  its  own  interests  in  the  escheats  and 
quit  rents  of  New  York,  rejected  both  laws  and  insisted 
upon  the  appointment  of  a  royal  commission  from  the 
decision  of  which  parties  aggrieved  could  appeal  to  the 
King  in  Council.''    Of  less  importance  was  a  controversy 

*  CO/5-577,  C,  29.  A.  P.  C,  vol.  v,  p.  286;  West  Florida,  9  December 
1770.  CO/5-Z26,  pp.  18&-199.  A.  P.  C,  vol.  V,  p.  338;  North  Carolina, 
22  April  1772.  The  latter  act  was  also  objectionable  in  that  it  laid  a 
tax  upon  one  particular  county. 

'CO/5-997,  pp.  386-8.  A.  P.  C,  vol.  iv,  p.  214.  CO/5-1129,  p.  12. 
A.  P,  C,  vol.  iv,  p.  301;  24  June  1755.  A.  P.  C,  vol.  iv,  p.  686; 
20  July  1764.  The  matter  was  finally  settled  by  the  confirmation  of 
acts  from  both  colonies,  accepting  the  commission's  decision  and  with- 
drawing the  appeals  which  had  been  entered  from  its  findings.  A.  P.  C, 
vol.  V,  p.  45;  I  September  1773. 


200  REVIEW  OF  COLONIAL  LEGISLATION  [6i8 

which  arose  between  Georgia  and  certain  citizens  of 
South  Carolina.  Georgia  imposed  requirements  of  set- 
tlement and  cultivation  upon  the  owners  of  land  within 
her  borders,  some  of  whom  derived  their  titles  from 
previous  grants  of  doubtful  vaUdity  made  by  the  gov- 
ernment of  Carolina.  The  grantees,  who  were  citi- 
zens of  the  latter  province,  objected  that  the  Georgia  act 
prescribed  terms  other  than  those  upon  which  the  lands 
had  been  granted,  that  the  determination  of  titles  rested 
wholly  with  the  governor  and  council  of  Georgia,  and 
that  owners  were  allowed  but  six  months  in  which  to 
establish  their  claims.  The  Privy  Council  adjusted  the 
matter  by  disallowing  the  offensive  act  of  Georgia,  and 
by  ordering  that  the  governor  of  South  Carolina  transmit 
to  Georgia  copies  of  the  patents  in  question,  together 
with  all  the  proceedings  thereon.  Georgia,  in  turn,  was 
instructed  to  pass  a  new  law  for  the  cultivation  of  lands, 
and  to  establish  a  court  for  the  substantiation  of  claims.' 
I  The  great  majority  of  inter  colonial  differences  which 
\  found  their  way  into  law  were  caused  by  an  attempt  of 
one  colony  to  tax  or  limit  the  trade  of  a  neighbor. 
Maryland  imposed  a  levy  of  ten  per  cent,  upon  English 
goods  passing  through  her  territory  to  Pennsylvania,^ 
New  Hampshire  offended  Massachusetts  by  an  export 
duty  upon  timber  and  boards,  and  the  latter  retaliated  by 
imposing  duties  both  upon  goods  imported  from  New 
Hampshire  and  those  exported  thither.^  A  New  York 
duty  upon  tonnage  proved  injurious  to  the  trade  of  Ber- 

^  CO/5-649,  p.  147.    CO/5-674,  p.  311.    A.  P.  C,  vol.  V,  p.  113; 
26  August  1767. 

»C.  5.  P.,  1696-7,  p.  243.    CO/5-72S,  p.  165.    5.  T. /.,  vol.  X,  p.  352. 

'CO/S-911,  p.  209.    CO/5-913,  p.  503.    CO/5-915,  p.  148;  7  May  1715. 
Acts  and  Resolves,  vol.  ii,  p.  235,  ch.  v. 


6i9]  POLICY  IN  LEGISLATIVE  REVIEW  201 

muda,'  and  the  Province  of  North  Carolina  which  had  no 
good  ports  within  its  own  bounds,  complained  of  an  act 
of  South  Carolina  which  laid  an  impost  upon  its  naval 
stores,  and  of  an  effort  by  Virginia  to  prohibit  the  impor- 
tation and  sale  of  its  tobacco.^  It  did  in  fact  appear,  as 
West  observed,  that  the  colonies  considered  themselves 
alien  to  each  other  and  able  to  "  act  as  independent  King- 
doms in  point  of  trade."  ^  Although  deprecating  the 
evils  which  arose  from  this  general  freedom  of  taxati^^ 
the  home  government  realized  its  absolute  necessityjgr 
raising  adequate  provincial  revenues,  and  sought,  not  to 
prohibit  the  levying  of  duties  upon  inter-colonial  trade, 
but  rather  to  prevent  excesses  and  consequent  reprisals 
which  would  appreciably  injure  any  one  colony,  t^ 
colonies  as  a  whole,  or  the  trade  and^mleresTjS^^^^^t 
Britain/ 

The  crown  interfered  to  prevent  the  taxation  by  Caro- 
lina of  goods  transported  across  her  frontier  by  Indian 
traders  from  Virginia  and  again  several  years  later  to  free 
the  Indian  traders  of  South  Carolina  from  burdensome 
restrictions  imposed  by  Georgia.     The  need  for  concerted 

iC'O/5-1059,  Gg,  13.    B.  T.  J.,  vol.  xlvi,  pt.  ii,  pp.  2,  149;  1739. 

^N.  Car.  Col.  Records,  vol.  v,  pp.  786-7;  Cited  by  Dickerson,  p.  250. 
CO/5-1366,  p.  76.  A.  P.  C,  vol.  iii,  p.  345;  Disallowed,  25  November 
1731- 

'  In  spite  of  urgent  need,  Virginia  was  unable  to  lay  duties  upon  ships 
entering  and  leaving  Chesapeake  Bay  for  the  erection  and  support  of 
a  light  house,  because  Maryland  was  exempt  from  such  levies  by  a 
provision  of  its  charter.  Attempts  of  Virginia  to  erect  such  a  beacon 
failed  because  of  the  opposition  of  Maryland  in  1728  and  1759;  but  she 
finally  succeeded  in  1772,  when  Governor  Dunmore  violated  his  in- 
structions by  assenting  to  an  act  for  the  purpose  without  a  suspending 
clause.  B.  T.  /.,  vol.  xxxvii,  pp.  270,  281.  A.  P.  C,  vol.  iv,  p.  401. 
CO/5-1333,  p.  513.    CO/5-1369,  p.  309.    CO/5-1334,  Cc,  40. 

*  CO/5-894,  Oo,  5.  Report  of  Jackson  on  a  Mass^cliusetts  "  tonnage 
bill." 


202  REVIEW  OF  COLONIAL  LEGISLATION  £620 

action  upon  this  subject  was  frankly  admitted  by  the 
Board  of  Trade  in  a  letter  to  the  governor  of  South  Caro- 
lina, endorsing  his  proposal  for  a  conference  among  the 
governors  of  the  southern  colonies.  An  intercolonial 
agreement,  they  hoped,  "  might  stop  those  mischiefs  and 
inconveniences  which  have  followed  from  different  Prov- 
inces connected  with  the  same  Indians  passing  partial 
acts,  not  only  differing  from,  but  frequently  obstructing 
and  counteracting  each  other.  [This]  has  been  one  .  .  . 
source  of  that  jealousy  and  discontent  among  the  Indians, 
which  of  late  years  has  been  attended  with  such  terrible 
consequences."  ^  Nevertheless,  a  law  of  Virginia  passed 
for  this  very  purpose  ten  years  later,  was  regarded  as  an 
act  of  usurpation  and  was  disallowed,  ostensibly  because 
it  contained  no  suspending  clause.^ 

^  Board  to  Gov.  Boone,  CO/5-404,  p.  171 ;  3  June  1762. 
^  CO/5-1369,  p.  235.    CO/5-1334,  Cc,  p.  15;  14  June  1771. 


CHAPTER  VIII 
The  Results  of  Legislative  Review 

The  English  experiment  of  endowing  over-sea  domin- 
ions with  a  power  to  make  laws  which  should  be  as  nearly 
as  possible  conformable  to  those  of  the  mother  country, 
committed  the  home  government  to  a  second  venture, — 
that  of  reviewing  and  checking  the  enactments  of  the 
colonial  legislatures.  We  have  seen  how  the  necessity 
of  such  a  supervision  came  gradually  to  be  realized  in 
England;  and  how,  piece  by  piece,  the  administrative 
machinery  for  its  accomplishment  was  assembled.  We 
have  seen  that  in  the  exercise  of  this  power  the  govern- 
ment aimed  to  further  the  economic  interests  of  the 
Empire  as  a  whole,  to  enforce  a  rather  close  conformity 
both  to  the  spirit  and  the  letter  of  English  law,  to  pre- 
serve the  supremacy  of  the  crown  in  the  dominions,  and 
to  protect  the  colonists  from  the  consequences  of  their 
I  own  legislative  indiscretions.  These  conclusions  natur- 
[  ally  provoke  inquiry  as  to  how  far  the  government  suc- 
/ceeded  in  the  accomplishment  of  its  ends,  as  to  the  ap- 
proximate causes  of  such  success  or  failure,  and  further- 
more, as  to  whether  the  system  of  review  was  in  its 
operation  such  a  hardship  upon  the  colonists  as  to  con- 
stitute a  just  grievance  against  the  mother  country. 

In  its  review  of  legislation  the  government  found  much 
with  which  to  contend.     The  great  distance  of  the  colo- 
nies from  England,  the  slowness  and  uncertainty  of  com- 
munication, the  ignorance,  indifference  and  procrastina- 
621]  203 


204  REVIEW  OF  COLONIAL  LEGISLATION  [622 

tion  of  many  local  officials,  all  militated  against  success. 
An  obstacle  even  more  formidable  was  the  particularist 
temper  of  the  colonists,  a  people  always  jealous  of  pre- 
cedent and  ever  suspicious  of  the  slightest  infringement 
upon  their  alleged  rights.  Nevertheless,  the  government 
by  its  control  over  the  colonial  legislatures  did  achieve 
the  main  objects  of  its  desire.  In  such  policies  as  the 
crown  chose  to  maintain  consistently  and  without  com- 
promise the  colonies  learned  to  acquiesce ;  for  against  a 
disallowance,  followed  by  an  instruction  to  the  governor 
forbidding  his  assent  to  any  future  act  of  like  purpose, 
the  popular  party,  as  a  rule,  could  make  Httle  or  no 
headway. 

In  this  manner  the  assemblies  were  restrained  from 
placing  imposts  upon  goods  of  English  manufacture, 
from  regulating  the  value  of  foreign  coins,  and  from  en- 
couraging the  establishment  of  manufactures  which 
would  compete  with  those  of  Great  Britain.  For  the 
most  part,  they  were  prevented  from  enacting  provisions 
unduly  favorable  to  the  local  inhabitants ;  although  ex- 
emptions from  dues  upon  shipping  were  sometimes  in- 
serted in  necessary  supply  acts.  In  its  efforts  to  restrict 
the  issue  of  paper  currency  the  crown  was  less  uniformly 
successful.  The  government  would  fain  have  forbidden 
its  use  altogether.  But  the  dearth  of  any  proper  medium 
,'  of  exchange  in  the  colonies  rendered  some  concession  to 
local  sentiment  unavoidable.  Nor  could  bills  once  issued 
be  summarily  recalled  or  declared  void  without  injury 
both  to  private  holders  and  to  trade.  Until  the  last  in- 
tercolonial war  the  government  succeeded  fairly  well  in 
limiting  amounts  outstanding,  in  obtaining  adequate 
provisions  for  refunding  and  in  preventing  the  bills  from 
being  made  legal  tender.  The  urgent  necessity  for  ob- 
taining supplies  for  the  war,  however,  caused  a  relaxa- 


623]         THE  RESULTS  OF  LEGISLATIVE  REVIEW  205 

tion  of  instructions,  and  an  increased  volume  of  currency, 
especially  in  New  York,  New  Jersey  and  Pennsylvania/ 

In  the  larger  sense  the  government  succeeded  in  keep- 
fing  the  colonial  laws  in  conformity  with  those  of  Eng- 
land. Differences  in  minor  technicalities  were  common, 
and  not  all  of  them  were  excusable  because  of  local  con- 
ditions or  long-established  usage.  But  by  reason  of 
many  annulments  the  colonists  learned  to  respect  the 
personal  rights  and  private  property  of  individuals,  and 
to  abide  by  the  forms  and  larger  precedents  of  English 
law.  When  the  Board  of  Trade  began  its  work  at  the 
close  of  the  seventeenth  century  the  acts  of  every  colony 
were  ill-kept,  loosely  worded,  and  burdened  by  contra- 
dictory amendments.  The  Puritan  colonies  in  basing 
their  legislation  upon  the  Mosaic  code  had  enacted  many 
absurd  prohibitions  and  excessive  penalties.  Left  to 
their  own  initiative,  no  doubt  the  colonists,  with  the 
gradual  development  of  a  trained  bench  and  bar,  would 
have  remedied  these  defects.  But  the  marked  improve- 
ment in  the  technic  of  law-making  displayed  during  the 
early  part  of  the  eighteenth  century  by  all  the  colonies 
whose  acts  were  subject  to  review  at  home,  was  due 
primarily  to  persistent  tutelage  from  the  Board  of  Trade 
and  the  law  officers.  Their  guidance  constituted  the 
most  potent  factor  in  the  gradual  moulding  of  a  colonial 
jurisprudence  similar  in  broad  lines  and  essential  features 
to  that  of  England. 

In  attempting  to  defend  the  prerogative  from  legisla- 
tive encroachment  the  government  was  less  successful. 
The  assemblies  learned  to  acquiesce  in  the  proper  forms 
of  loyalty,  to  make  no  grants  save  to  the  king,  and  to 

^  Hardy  to  the  Bd,  CO/5-1067,  D,  30;  23  February  1756.  A.  P.  C, 
vol.  iv,  p.  346;  8  July  1757.  A.  P.  C,  vol.  iv,  pp.  362,  372;  i  April 
1758.    A.  P.  C,  vol.  iv,  p.  341. 


2o6  REVIEW  OF  COLONIAL  LEGISLATION  [624 

forbear  from  interfering  with  the  property  of  the  crown. 
But  the  popular  support  accorded  the  lower  houses,  to- 
gether with  their  control  over  supplies,  frequently  enabled 
them  to  override  the  king's  governors  in  matters  which 
were  properly  within  the  latter's  sole  discretion  or  had 
originally  been  placed  there. 

An  effective  review  of  legislation  in  England  was  often 
hampered  by  irregularities  upon  the  part  of  colonial  leg- 
islatures and  officials.  Failures  of  the  governors  to  trans- 
mit promptly  acts  and  other  official  papers  was  a  constant 
source  of  inconvenience  and  annoyance.  The  Board  com- 
plained in  1754  that  they  had  received  no  word  from  New 
Hampshire  for  two  and  a  half  years;  and  in  1742  that 
during  almost  a  decade  only  six  acts  had  been  submitted 
from  New  Jersey.^  Despite  the  renewal  of  instructions 
reminding  the  governors  of  their  duty  in  this  respect, 
complaints  regarding  the  ill  effects  of  legislation  fre- 
quently reached  the  Board  in  advance  of  the  acts  to  which 
they  had  reference.''  In  many  cases  delay  in  transmission 
was  caused  by  irregular  and  uncertain  communication 
between  the  colonies  and  the  mother  country.  This  was 
especially  true  of  the  more  isolated  colonies  like  New 
Hampshire  and  the  Carolinas,  although  Governor  Fau- 
quier of  Virginia  excuses  himself  by  the  fact  that  "no 
ships  for  London  went    out  of   these    ports  for  a  long 

1  Board  to  Wentworth,  CO/5-941,  p.  354;  5  July,  1754.  Board  to 
Morris,  CO/5-997,  p.  25 ;  3  August,  1742. 

^Hillsborough  to  the  Gov.  of  N.  Y.,  Col.  Docs.,  vol.  viii,  p.  82; 
II  July  1768.  John  Penn  protested  to  Hillsborough  that  this  fact  did 
not  necessarily  imply  official  neglect.  For  "  merchantile  people  have 
more  frequent  opportunities  of  writing  to  their  correspondents,  having 
a  wider  knowledge  of  conveyances  from  other  Provinces.  Also  they 
transmit  intelligence  when  it  would  be  improper  for  Governors  to 
transmit  accounts  before  they  are  fully  ascertained." 


625]  ^^^  RESULTS  OF  LEGISLATIVE  REVIEW  207 

time/' '  Far  more  often,  however,  tardy  submission  ap- 
pears to  have  been  caused  by  negligence  and  procrasti- 
nation upon  the  part  of  governors  or  the  colonial  secre- 
taries. The  latter  who  were  usually  ill  paid  and  sometimes 
incompetent,  were  apt  to  slight  the  transcribing  of  laws, 
while  the  governors  sometimes  neglected  the  matter  of 
transmission  entirely  or  left  it  to  subordinate  officials.* 
The  charter  of  Pennsylvania  allowed  that  colony  five 
years  in  which  to  submit  laws  to  the  Privy  Council,  and 
there  can  be  no  doubt  that  she  sometimes  took  advan- 
tage of  this  unnecessarily  long  interval  to  prolong  the 
operation  of  acts  which  she  well  knew  would  be  disal- 
lowed. In  1718  and  again  in  1766  there  was  a  delay  of 
over  three  years  between  the  enactment  of  laws  and  their 
consideration  at  the  Board.^ 

The  review  of  legislation  was  sometimes  hampered 
also  by  the  inclusion  of  provisions  upon  unrelated  sub- 
jects within  the  same  enactment.  In  the  majority  of 
cases  this  also  was  due  to  ignorance  or  carelessness. 
Maryland,  for  example,  submitted  an  entire  code  under  a 
single  enacting  clause.  In  1695  the  committee  com- 
plained that  diverse  acts  of  Massachusetts  were  "joined 
together  under  ye  same  title,  whereby  it  has  been  neces- 
sary for  the  repealing  of  such  of  them  as  have  not  been 
thought  fit  to  be  confirmed  to  vacate  such  others  as  have 

^  CO/1329,  X,  65 ;  10  April  1759.  Hillsborough  urged  the  Governors 
to  avail  themselves  of  any  private  ship  and  not  to  wait  for  packets. 
N.  Y.  Col  Docs.,  vol.  viii,  p.  82. 

''Board  to  Dudley,  CO/5-911,  p.  18;  29  April  1703.  CO/5-913,  p.  504. 
CO/5-869,  Y,  38.  CO/5-942,  p.  260;  10  July  1764.  CO/6-907,  p.  359. 
CO/5-911,  p.  422.  N.  Y.  Col.  Docs.,  vol.  viii,  p.  277.  C.  S.  P.,  1677-80, 
p.  388;  Barbadoes.    C.  5".  P.,  1699,  p.  165;  Antigua. 

3  Pa.  Stats.,  vol.  iv,  p.  467;  21  April  1739.  A.  P.  C,  vol.  ii,  p.  614. 
CO/5-1293,  p.  160.  Pa.  Sts.,  vol.  vi,  p.  608;  9  June  1766.  Root,  Rela- 
tions of  Pa.  with  the  Br.  Govt.,  pp.  138,  141. 


2o8  REVIEW  OF  COLONIAL  LEGISLATION  [626 

been  comprehended  under  such  titles."'  The  Privy 
Council  forbade  this  practice  by  a  standing  instruction 
to  the  governors.  Yet  apparently  without  ill  design  the 
colonies  passed  many  such  inclusive  laws  as  that  of 
Jamaica,  "for  better  regulating  slaves  and  rendering 
free  negroes  and  mulattoes  more  useful,  and  preventing 
hawking  and  peddling,  and  enlarging  the  time  for  Com- 
missioners collecting  outstanding  debts;"  or  that  of 
South  Carolina  "in  addition  to  an  act  preventing  the 
spread  of  contagious  distempers,  and  renewing  an  act  for 
estabHshing  a  market  in  Charleston."^  When,  in  rare 
instances,  this  expedient  was  used  to  circumvent  the 
Board  of  Trade,  the  objectionable  provision  was  usually 
inserted  as  a  rider  to  a  supply  act.  Thus,  in  1760,  the 
Board  complained  that  a  Pennsylvania  law  issuing  bills  of 
credit  included  a  loan  to  Col.  Hunter  with  which  it  had 
not  the  least  necessary  relation.^ 

The  enactment,  and  sometimes  the  re-enactment  of 
objectionable  laws  of  brief  duration  was  another  source 
of  annoyance  to  the  Board  of  Trade.  This  practice,  if 
unrestricted,  would  have  enabled  the  colonists  to  defeat 
the  object  of  review  altogether.  Accordingly  the  gov- 
ernors were  instructed  that  all  laws  save  those  for  a 
temporary  end  should  be  indefinite  and  without  limitation, 
and  that  no  law  once  enacted  should  be  re-enacted  except 
upon  very  urgent  occasions,  and  in  no  case  more  than 
once  without    the  king's  express    permission.^     It  was 

*  CO/5-906,  p.  205 ;  August  1695. 

*  A.  P.  C,  vol.  iii,  p.  344.    A.  P.  C,  vol.  iv,  p.  141.    Both  were  dis- 
allowed upon  other  grounds. 

» Pa.  Stats.,  vol.  v,  p.  715.    C.  5".  P.,  1681-5,  p.  316;  Jamaica.    B.  T.  /., 
vol.  Ixix,  p.  40 ;  South  Carolina. 
V^^B.  T.  I.,  vol.  X,  p.  206.    C.  S.  P.,  1696-7,  p.  589;  26  August  1697. 
Board  to  Bellomont,  A/:ts  and  Resolves,  vol.  i,  p.  308. 


627]         ^^^  RESULTS  OF  LEGISLATIVE  REVIEW  209 

scarcely  practical  or  feasible  to  make  the  prohibition  of 
temporary  acts  absolute.  Yet  the  qualification  left  a 
loophole  for  evasion,  in  that  the  governor  must  decide 
what  constituted  a  temporary  end.  The  interpretation 
both  of  the  governors  and  the  Board  of  Trade  was  liberal, 
for  many  temporary  laws  were  enacted  in  all  the  colonies 
and  the  great  majority  met  with  no  objection  upon  that 
account.  Approximately  four  per  cent,  of  the  laws  of 
Pennsylvania,  eight  per  cent,  of  New  York  acts  and  sev- 
enteen per  cent,  of  those  enacted  by  Massachusetts  ex- 
pired within  two  years,  and  a  large  part  of  these  had 
already  ceased  to  have  effect  when  examined  by  the 
Board  of  Trade.  They  included  revenue  acts,  laws  pro-  . 
viding  for  defence,  regulating  the  militia,  maintaining 
highways,  establishing  fees  and  bounties,  and  governing 
various  matters  of  domestic  concern.    ' 

Temporary  acts  which  incurred  the  particular  displeas- 
ure of  the  Board  were  for  the  most  part  revenue  measures 
upon  which  the  assembly  had  grafted  some  obnoxious 
provision.  A  Pennsylvania  law  of  1710  laid  a  duty  of 
nine  pence  per  ton  upon  all  ships  except  those  owned  by; 
inhabitants  of  the  province^^  A  Massachusetts  act  of 
1 718  contained  a  double  impost  upon  goods  imported 
from  Great  Britain,  together  with  an  exemption  in  favor 
of  local  vessels.  This  was  an  annual  law,  and  the  Board, 
presuming  its  re-enactment,  went  so  far  as  to  recommend 
that  the  governor  be  ordered  to  declare  his  majesty's 
disapprobation  of  the  new  act,  and  to  prevent  its  being 
put    into  execution.^      A  Jamaica    law  which  levied  an 

l^^n^a.  Stats.,  vol.  i,  p.  555;  15  January  1714.  This  law  was  of  three 
years  duration ;  but  because  of  delay  in  submission  it  had  only  two 
months  to  run  when  considered  at  the  Board.  It  was  re-enacted  with 
the  exception  of  the  tonnage  duty  and  again  disallowed,  but  only  after 
it  had  expired.  Root,  Relations  of  Pa.  with  the  Br.  Govt.,  p.  148. 
2  Acts  and  Resolves,  vol.  ii,  p.  127.    A.  P.  C,  vol.  ii,  p.  760. 


2IO  REVIEW  OF  COLONIAL  LEGISLATION  [628 

annual  tax  was  disallowed  because  in  attempting  to 
regulate  the  number  of  white  men  upon  estates,  it  dis- 
criminated against  absentee  owners/  The  clergy  of  Vir- 
ginia asserted  that  some  of  the  laws  regulating  the  pay- 
ment of  their  salaries  were  made  temporary  to  prevent 
iroyal  consideration.  Yet  in  view  of  the  unsettled  price 
of  tobacco  it  is  diilficult  to  see  how  they  could  have  been 
of  long  duration.^  In  some  comparatively  unimportant 
instances  temporary  laws  other  than  supply  acts  were 
doubtless  used  to  secure  objectionable  legislation.  But 
their  enactment,  except  possibly  in  Pennsylvania,  was 
not  an  effective  means  of  thwarting  the  home  govern- 
ment. If  the  attempted  evasion  were  incorporated  in  a 
revenue  act,  properly  of  limited  duration,  there  was  small 
chance  of  its  escaping  observation  and  achieving  re-en- 
actment. Moreover,  the  governors  feared  to  commit 
such  an  obvious  breach  of  instructions  as  the  passing  of 
temporary  acts  for  the  accomplishment  of  permanent 
ends,  such  as  the  disposal  of  private  property,  the  regula- 
tion of  assemblies  or  the  erection  of  courts. 

A  more  common  and,  upon  the  whole,  a  more  effectual 
mode  of  evasion  was  the  re-enactment  of  laws  disallowed. 
This  practice  also  was  forbidden  by  instructions.  But 
there  was  scarcely  a  colony  which  did  not  offend  at  one 
time  or  another.  A  Pennsylvania  act  of  1700  granting 
a  jury  to  freemen  in  all  cases  whatsoever  was  disallowed 
because  it  interfered  with  the  jurisdiction  of  the  admiralty 
courts,  where  juries  were  not  permitted.  It  was  re- 
enacted  with  a  clause  saving  the  admiralty  jurisdiction. 
Because  the  crown  still  feared  that  the   law  would   be 

M.  P.  C,  vol.  iv,  p.  39;  30  June  1748.  Another  Jamaica  revenue 
law,  which  the  Board  found  to  have  expired,  laid  an  additional  duty  of 
40  shillings  upon  slaves.    A.  P.  C,  vol.  v,  p.  407;  27  February  1775. 

*  CO/5-1329,  vol.  X,  p.  57;  2Z  May  1759- 


629]         ^^^  RESULTS  OF  LEGISLATIVE  REVIEW  211 

used  to  hinder  the  enforcement  of  the  acts  of  trade,  it 
was  disallowed,  only  to  be  again  re-enacted  and  again 
disallowed.'  A  Pennsylvania  law  of  1700  which  gave  a 
preference  to  colonial  debtors  was  re-enacted  after  dis- 
allowance, and  acts  for  establishing  courts  were  several 
times  repeated  with  modifications.''  Aroused  by  the  fact 
that  acts,  tardily  submitted  in  1718,  contained  several  re- 
enactments  of  laws  previously  vetoed,  the  Board  sent  the 
Pennsylvania  charter  to  West,  and  inquired  whether  it 
did  not  prohibit  the  practice.  He  replied  that  it  con- 
tained nothing  to  forbid  the  re-enactment  in  substance 
of  laws  disallowed.3  Inasmuch  as  the  governors  of 
Pennsylvania,  unlike  those  of  other  colonies  submitting 
their  laws  to  the  Privy  Council,  were  subject  only  to  the 
general  instructions  regarding  the  enforcement  of  the 
acts  of  trade,  the  assembly  of  Pennsylvania  by  repeated 
re-enactments  could  have  nullified  the  effect  of  the  royal 
veto.  The  fact  that  they  did  not  pursue  such  a  course 
was  due  largely,  no  doubt,  to  the  realization  that  it 
would  have  provoked  an  annulment  of  the  charter. 

Bermuda  offended  the  Board  by  enacting  a  four  per 
cent  impost  on  goods  after  the  Crown  had  disallowed  a 
similar  law  levying  five  per  cent.'^  New  Jersey  twice  re- 
enacted  under  different  titles  laws  reducing  the  fees  of 
the  secretary's  office,  and  North  Carolina  repeated  an  ill- 
advised  attempt  to  facilitate  the  proving  of  wills.^     By  re- 

1  Pa.  Stats.,  vol.  ii,  pp.  18,  359,  451,  467,  543,  550.  Pa.  Stats.,  vol.  iii, 
PP-  31,  439,  463.     Root,  op.  cit.,  p.  147. 

^  Stats.,  vol.  ii,  pp.  63,  364,  494,  550.    Root,  op.  cit.,  pp.  147,  I59-I74- 

'  B.  T.  /.,  vol.  xxviii,  p.  167.  Chalmers,  Opinions,  p.  Z2^ )  24  March 
1719.    CO/5-1265,  O,  171. 

*  A.  P.  C,  vol.  iii,  p.  70;  4  July  1724.  The  second  act  was  the  more 
offensive  in  that  it  reduced  the  amount  to  2%  for  inhabitants  of 
Bermuda. 

^  CO/5-972,  E,  56.    A.  P.  C,  vol.  iii,  p.  343;  New  Jersey,  25  November 


212  REVIEW  OF  COLONIAL  LEGISLATION  [630 

enactment  the  colonists  could  secure  the  operation  of  a 
law  between  the  time  of  its  passage  and  the  arrival  of 
an  order  of  disallowance  in  the  colony.  But  there  was 
little  chance  of  eluding  the  vigilance  of  the  law  officers 
and  the  Board  of  Trade,  even  though  the  objectionable 
provisions  were  disguised  in  form  and  title.  Usually  the 
assemblies  made  concessions,  sometimes  insufficient,  it  is 
true,  towards  eliminating  objections  made  to  the  former 
act,  and  in  many  cases  these  were  so  effectually  remedied 
that  the  second  law  passed  the  Board  without  objection.^ 
In  some  instances  a  disallowance  was  rendered  of  no 
effect  by  the  failure  of  an  order  in  council  to  reach  the 
province,  or  by  the  neglect  of  colonial  officials  to  enter 
it  upon  the  law  books.  In  this  manner  a  provision  in  a 
Virginia  revenue  law,  disallowed  in  1680,  continued  in 
force  until  the  fact  was  brought  to  the  attention  of  the 
Board  in  1707.''  The  repeal  of  a  Massachusetts  act 
"Establishing  the  Township  of  Danvers"  was  never 
observed  in  the  colony,  and  a  law  of  New  Hampshire 
regarding  the  care  of  idiots,  which  was  disallowed  in 
1718,  remained  in  force  until  it  was  re-enacted  and  again 
annulled  fifty  years  later.^  In  1761  Lieutenant  Governor 
Golden  wrote  to  the  Board — "  I  am  told  that  several  acts 
in  Basket^s  edition  of  the  acts  of  New  York  in  1718  are 

1731.    CO/5-973,   F,   3.    ^.  P'   C,   vol.  iii,   p.   454;   9  January   1735. 
CO/5-325,  C,  189.    A.  P.  C,  vol.  iv,  pp.  502,  503;  14  December  1761. 

*  For  example,  an  act  of  New  Hampshire  "Restraining  Excessive 
Usury,"  CO/5-943,  p.  16;  20  July  1770.  Such  laws  were  supposed  to 
contain  a  suspending  clause,  but  this  requirement  was  not  always 
complied  with. 

^  B.  T.  J.,  vol.  xix,  p.  399.  In  like  manner  the  Board  sent  a  second 
order  in  council  repealing  a  Virginia  law  "  Granting,  Seating  and 
Planting  Lands  "  in  1710.    CO/5-1263,  p.  219. 

•CO/5-915,  pp.  163,  172;  27  August  1718.  A.  P.  C,  vol.  V,  p.  189; 
26  May  1769. 


631]         THE  RESULTS  OF  LEGISLATIVE  REVIEW  213 

noted  to  be  repealed,  of  which  not  the  least  evidence 
appears  anywhere  in  the  Province.  ...  I  make  no  doubt 
the  judges  continue  to  proceed  upon  them  as  of  force.' 

Experience  in  reviewing  colonial  legislation  convinced 
the  English  officials  at  an  early  date  that  some  check 
upon  the  assemblies'  power  of  initiative  was  an  absolute 
necessity.  Without  it  the  colonists  could  enact  what 
manner  of  laws  they  pleased,  and  after  disallowance  they 
could  defy  the  royal  authority  by  re-enacting  them  again. 
Following  an  ill-considered  and  unsuccessful  attempt  to 
compel  the  submission  of  proposed  legislation  to  the 
Privy  Council  prior  to  its  enactment,  the  government 
placed  an  increasing  reliance  upon  instructions  which 
limited  the  governors'  discretion  in  giving  assent  to  acts 
of  the  assemblies.  The  strictness  with  which  they  were 
observed  varies  somewhat  in  different  colonies,  and  from 
time  to  time  in  the  same  colony,  according  to  the  tem- 
per of  the  assembly,  or  the  popularity  and  political 
sagacity  of  the  governor.  But  upon  the  whole  they 
imparted  a  necessary  continuity  to  the  enforcement  of 
the  government's  policies,  and  constituted  a  fairly  effec- 
tive means  of  controlling  legislation.  The  prohibitions 
most  emphasized, — those  regulating  matters  of  trade, 
shipping  and  finance, — were  well  obeyed,  with  the  ex- 
ception of  restraints  upon  the  issue  of  paper  currency. 
Mandatory  instructions  that  governors  should  use  their 
utmost  endeavor  in  securing  the  amendment  or  the  enact- 
ment of  legislation  were  binding  upon  the  governors, 
but  not  upon  the  assemblies ;  and  the  latter  frequently 
neglected  or  refused  to  comply  with  the  government's 
requests.'' 

*  N.  Y.  Col.  Docs.,  vol.  vii,  pp.  454-455.    Dickerson,  op.  cit.,  p.  272. 
^CO/S-362,  D,  18;  1731.    B.  T.  /.,  vol.  Ixx,  p.  360;  1763.    And  many 
others. 


214  REVIEW  OF  COLONIAL  LEGISLATION  [632 

Least  effectual  were  the  several  instructions  which 
forbade  governors  to  pass  laws  without  the  insertion  of 
a  suspending  clause.  Massachusetts  and  Pennsylvania 
consistently  refused  to  make  use  of  this  expedient  inas- 
much as  their  charters  provided  that  laws  should  operate 
from  the  time  of  their  enactment.'  Because  of  the  ex- 
pense and  long  delay  involved  in  securing  a  decision 
from  the  crown  the  assemblies  consented  to  suspending 
clauses  only  with  the  greatest  reluctance.  By  repeated 
disallowances  the  government  schooled  most  of  the  royal 
colonies  to  their  insertion  in  private  laws.  But  in  spite 
of  repeated  complaints  from  the  Board  of  Trade  the  in- 
struction which  required  the  suspension  of  acts  repealing 
former  acts,  whether  the  law  repealed  had  received  royal 
confirmation  or  not,  was  violated  repeatedly."* 

Another  instruction  which  received  at  best  a  perfunc- 
tory compliance  was  that  requiring  the  insertion  of  a 
suspending  clause  in  laws  '*  of  an  unusual  or  extraordi- 

*  Upon  several  laws,  however,  the  governor  of  Massachusetts  secured 
a  previous  permission  to  give  consent  and  another  he  so  worded  that 
it  would  have  no  effect  until  His  Majesty's  pleasure  could  be  known, — 
an  expedient  which  was  practically  equivalent  to  the  insertion  of  a 
suspending  clause.  Hutchinson  to  the  Board,  CO/5-894,  p.  365;  8  May 
1772,  "Incorporating  the  Overseers  of  the  Poor  of  Boston."  Permission 
was  obtained  for  a  bankruptcy  act,  CO/5-919,  p.  61 ;  12  March  1760,  a 
lottery  for  Harvard  College,  CO/5-891,  p.  535;  15  July  1765,  and  for 
the  repeal  of  a  bounty  for  killing  crows.  In  the  latter  case  the  Board 
stated  that  it  would  have  been  better  pleased  had  the  assembly  passed 
the  bill  with  a  suspending  clause.    CO/5-918,  p.  129;  9  August  1744. 

^A.  P.  C,  vol.  iv,  pp.  131-141,  a  report  upon  sixty-seven  Virginia 
laws.  The  Assemblies  of  Massachusetts  and  Virginia  complained  of 
the  injustice  of  this  prohibition,  and  asked  that  it  be  modified.  Parlia- 
ment, they  pointed  out,  was  free  to  repeal  laws  of  its  own  making 
whenever  they  proved  inexpedient.  The  Board  replied  that  the  in- 
struction was  "  founded  on  such  good  and  solid  reason  "  that  they  could 
not  advise  any  alteration  therein.  CO/5-875,  p.  306;  12  January  1733. 
A.  P.  C,  vol.  iv,  p.  174;  20  December  1752. 


633]         ^^^  RESULTS  OF  LEGISLATIVE  REVIEW  215 

nary  nature,  wherein  His  Majesty-s  prerogative  or  the 
property  of  his  subjects  might  be  prejudiced."  This 
vague  phraseology  enabled  governors  when  pressed  by 
the  assemblies  to  give  questionable  legislation  the  ben- 
efit of  a  supposedly  honest  doubt.  The  Board,  upon  the 
other  hand,  found  no  difficulty  in  applying  it  to  almost 
any  legislative  indiscretion  which  failed  to  fall  under 
some  other  head. 

In  a  few  instances  the  colonists  ventured  to  put  laws 
into  immediate  operation,  notwithstanding  the  fact  that 
they  contained  a  suspending  clause.  In  this  manner  the 
assembly  of  New  Jersey  disregarded  the  protests  of  the 
governor,  and  ordered  an  act  for  regulating  fees  printed 
*' as  a  rule  for  the  government  of  the  people."  Georgia 
also  inserted  a  suspending  clause  and  then  issued  bills  of 
credit  without  waiting  to  learn  the  royal  pleasure.' 

In  many  cases  the  governor's  failure  to  obey  instruc- 
tions was  due  to  a  necessity  of  obtaining  supplies  from  a 
recalcitrant  assembly.  This  was  particularly  true  of  acts 
authorizing  bills  of  credit,  although  the  assemblies  used 
their  control  of  appropriations  to  good  effect  in  securing 
laws  for  other  purposes  as  well.  The  assembly  of  Ja- 
maica, for  example,  forced  the  governor  to  pass  a  law 
limiting  the  duration  of  future  assemblies,  by  holding 
back  an  annual  supply  bill.''  Again,  the  governors  failed 
because  of  carelessness,  or  because  of  inability  to  grasp 
the  imperial  idea  and  the  necessary  implications  thereof, 
or  because  they  feared  to  incur  unpopularity  by  resisting 
public  sentiment. 

*  Morris  to  the  Board,  CO/5-974,  F,  571  3  March  1744.  A.  P.  C, 
vol.  iv,  p.  9;  28  June  1749.  Ellis  to  the  Board,  CO/5-673,  p.  264: 
21  April  1758.  A  similar  complaint  was  made  against  a  Virginia  act 
regarding  the  export  of  hides.    CO/5-1331,  Z,  88;  29  October  1766. 

'  A.  P.  C,  vol.  iv,  p.  91 ;  30  June  1752. 


2i6  REVIEW  OF  COLONIAL  LEGISLATION  [634 

In  addition  to  the  neglect  and  evasion  of  colonial  offi- 
cials, the  government's  review  of  legislation  suffered  in 
effectiveness  both  from  the  nature  of  the  machinery 
evolved  for  the  task  in  England  and  from  the  laxity 
which  frequently  pervaded  the  colonial  administration 
there.  The  work  could  have  been  accomplished  in  a 
comparatively  simple  and  expeditious  fashion  had  the 
Privy  Council  delegated  its  discretion  in  regard  to  legis- 
lation to  a  small  body  of  colonial  experts,  at  least  one  of 
whom  was  competent  to  decide  questions  of  law.  In- 
stead there  was  built  up,  precedent  upon  precedent,  a 
system  under  which  the  Council  followed  the  recom- 
mendations of  a  committee  of  its  own  members,  who  in 
turn  relied  upon  reports  from  a  board  acting  largely 
upon  the  advice  of  other  officials.  This  procedure,  in- 
volving as  it  did  a  series  of  references  from  board  to 
board,  was  at  best  cumbersome  and  dilatory.  Moreover, 
there  was  no  particular  person  charged  with  the  over- 
sight of  laws  during  their  entire  course  from  one  office 
to  another.  Consequently,  unless  the  colonial  agents  or 
the  merchants,  or  other  parties  having  interest,  visited 
the  various  officials  and  speeded  their  progress,  acts  were 
liable  to  be  delayed  for  years.  In  July,  1697,  the  secre- 
tary of  the  Board  informed  that  body  that  in  getting 
ready  acts  to  be  sent  to  the  attorney  and  solicitor,  he 
found  it  necessary  to  look  many  years  backwards  for 
those  that  had  lain  in  the  plantation  office  without  any 
report  upon  them.'  Several  Massachusetts  laws  sent  to 
the  attorney  and  solicitor  in  September,  1696,  became 
misplaced  and  were  not  found  until  May,  1698.''  Indeed, 
the  failure  of  the  attorney  and  solicitor  to  render  desired 

*  B.  T.  J.,  vol.  X,  p.  156. 

'  Acts  and  Resolves,  vol.  i,  p.  231. 


635]         ^^^  RESULTS  OF  LEGISLATIVE  REVIEW  217 

reports  was  a  subject  of  repeated  remonstrance  at  the 
Board  of  Trade.  The  king's  counsel,  as  a  rule,  was  rea- 
sonably prompt.  But  in  numerous  instances  laws  re- 
turned with  his  report  either  were  entirely  neglected  at 
the  Board  or  remained  long  without  consideration. 
Eighteen  acts  of  Massachusetts,  passed  in  171 5-16,  were 
referred  to  the  counsel  in  1724.  He  reported  in  1725, 
but  the  greater  part  of  these  laws  were  not  considered 
at  the  Board  until  November,  1735,  long  after  they  had 
been  confirmed  by  lapse  of  time.  In  1739  twenty-six 
acts  of  Pennsylvania,  passed  prior  to  1734,  were  found 
by  the  agent  "  after  tedious  researches,  .  .  .  laid  up  in  a 
by-corner  by  the  Board  of  Trade  and  covered  very  thick 
with  dust."'  A  Virginia  bill  for  ''Settling  the  Titles 
and  Bounds  of  Lands "  remained  in  the  office  of  the 
auditor-general  for  seven  years  before  the  agent  secured 
its  return  to  the  Board. ="  Such  cases,  although  numer- 
ous, constitute  the  exception  and  not  the  rule.^  They 
merely  serve  to  demonstrate  that  a  cumbersome  pro- 
cedure, together  with  a  lax  and  easy-going  administra- 
tion, permitted  much  needless  uncertainty  and  delay  in 
the  consideration  of  legislation. 

^  Pa.  Stats.,  vol.  iii,  p.  493.  Cited  from  the  Peun  Papers  in  the  col- 
lection of  the  Hist.  Soc.  of  Pa. 

2  CO/5-1367,  p.  321 ;  2  December  1757.    CO/5-1329,  X,  28. 

^Laws  which  the  Board  of  Trade  recommended  for  disallowance 
sometimes  remained  unrepealed  because  the  committee  of  the  Council 
neglected  to  take  action  upon  them.  But  almost  invariably  the  com- 
mittee either  found  reason  for  allowing  the  law  to  remain  in  force,  or 
for  re-referring  the  matter  to  the  Board,  which  failed  to  render  a 
second  report.  An  act  of  New  Jersey,  passed  in  1747  for  settling  its 
New  York  boundary,  was  re-referred  by  the  committee  and  recon- 
sidered without  definite  action  in  February,  1758.  A  quit  rent  law  of 
South  Carolina  was  recommended  for  disallowance  in  November  1732, 
and  although  the  committee  set  a  time  for  a  hearing,  it  took  no  further 
action  in  the  matter.    The   act,   or   a   substitute,   however,   was   con- 


2i8  REVIEW  OF  COLONIAL  LEGISLATION  [636 

The  process  of  review,  complex  and  dilatory  as  it  was, 
certainly  afforded  the  colonists  ample  opportunity  for 
presenting  their  case.  Both  the  Board  of  Trade  and  the 
committee  of  the  Council  were  essentially  fair  in  their 
attitude  toward  colonial  affairs,  willing  to  take  advice 
and  anxious  to  gather  all  available  information  before 
pronouncing  judgment.  The  Board  was,  and  repeatedly 
acknowledged  itself  to  be,  hampered  by  ignorance  of  the 
real  motives  behind  the  enactment  of  laws.  Indeed,  it 
frequently  confessed  inability  to  decide  matters  at  issue 
with  the  knowledge  of  colonial  conditions  at  its  disposal 
and  postponed  action  until  the  governor  could  be  heard 
from,  or  until  merchants,  former  colonial  officials  or  the 
agents  of  neighboring  colonies  could  be  consulted.  It 
repeatedly  urged  the  governors  to  give  full  and  explicit 
reasons  for  the  enactment  of  legislation.  Upon  laws  in- 
volving a  disposal  of  private  property  it  postponed  de- 
cision for  months, — and  in  some  cases  for  years,  in  order 
that  any  person  aggrieved  might  seek  redress.  More- 
over, those  failing  to  secure  a  hearing  at  the  Board  or 
dissatisfied  with  its  report,  could  obtain  a  judicial  review 
of  its  findings  from  the  committee  of  the  Council. 

Without  doubt,  however,  the  negotiations  and  hear- 
ings requisite  for  securing  the  repeal  or  confirmation  of 
legislation  involved  considerable  expense  to  the  colonists. 

sidered  at  the  Board  in  1739.  Three  laws  of  New  Hampshire,  for  es- 
tablishing parishes  and  townships  were  condemned  by  the  Board  in 
1752,  but  nothing  came  of  it  because  the  governor  wrote  that  the  as- 
sembly had  yielded  the  principal  points  in  dispute.  CO/5-941,  p.  364; 
6  August  1755.  The  committee  may  have  failed  to  take  any  notice  of 
a  Massachusetts  law  passed  in  1735  for  preventing  the  circulation  of 
paper  money  issued  by  private  parties  in  New  Hampshire.  Acts  and 
Resolves,  vol.  i,  p.  147,  ch.  xxi.  Dickerson,  op.  cit.,  pp.  270-271.  In 
1709  the  Board  warned  the  Privy  Council  that  it  must  shortly  declare 
the  royal  pleasure  upon  the  Pennsylvania  laws  passed  in  1705,  or  they 
would  be  confirmed  by  lapse  of  time.    B.  T.  /.,  vol.  xxi,  p.  232. 


637]  THE  RESULTS  OF  LEGISLATIVE  REVIEW  219 

Fees  must  be  paid  to  secretaries  and  under  officials,  and 
in  case  of  formal  hearings,  counsels  and  solicitors  must 
be  retained.  The  distribution  of  fees  was  especially 
necessary  for  securing  the  progress  of  laws  containing  a 
suspending  clause, — a  fact  which  goes  far  to  explain  the 
continued  reluctance  displayed  by  the  assemblies  in  con- 
senting to  their  use.  Moreover  the  expense  of  private 
acts,  in  which  the  insertion  of  a  suspending  clause  was 
obligatory,  fell  not  upon  the  colonies,  but  upon  individ- 
uals interested  in  securing  their  confirmation.  Conse- 
quently such  acts  sometimes  lay  by  for  years,  or  failed  in 
their  object  altogether  because  no  person  appeared  to 
secure  their  reference  to  the  law  office  or  consideration 
at  the  Board. 

In  numerous  instances  the  Board,  in  urging  upon  the 
colonies  the  necessity  of  maintaining  accredited  agents 
in  England,  frankly  stated  that  fees  must  be  paid  to 
secure  the  confirmation  of  private  acts.'  Other  sources 
show  that  a  judicious  use  of  money  frequently  hastened 
favorable  action  upon  public  laws  as  well.  In  1732 
the  agent  of  Rhode  Island  warned  his  constituents 
that  the  passage  by  Parliament  of  a  pending  bill 
obliging  the  colony  to  submit  its  laws  to  the  Privy 
Council  would  entail  a  great  expenditure  of  money 
yearly  "  at  the  Council  Office,  and  the  Board  of  Trade 
to  get  the  acts  through  here,  in  fees  for  Petitions, 
Reports,  References  and  Royal  Orders,  besides  the  tedi- 

1  Board  to  Hunter,  CO/5-1123,  p.  441;  16  April  1716:  "Several  New- 
Jersey  acts,  particularly  private  ones,  *  require  to  be  sent  to  the 
Attorney  and  Solicitor  General  for  opinion  before  the  Board  can  present 
them  to  His  Majesty.  But  as  there  is  no  Agent  here  *  enabled  to  dis- 
burse what  may  be  necessary  from  time  to  time,  those  acts  will  lye  by 
forever  in  their  hands."  Also  CO/5-915,  p.  20.  Board  to  Blakiston, 
CO/5-726,  p.  99. 


220  REVIEW  OF  COLONIAL  LEGISLATION  [638 

ous  delays  that  may  happen."'  Penn  asked  the  govern- 
ment of  Pennsylvania  for  **  fifty  guineas,  if  not  one  hun- 
dred, to  get  a  favorable  report"  upon  a  large  collection 
of  laws,  and  later  he  wrote  that  the  report  of  the  At- 
torney-General was  held  up  for  want  of  a  large  fee  to 
him.*  Bellomont  wrote  the  Board  in  1698  that  twenty- 
eight  merchants  of  New  York  had  contributed  one  hun- 
dred pounds  for  use  in  obtaining  the  royal  approval  of 
an  indemnity  bill.  Later  he  reported  that  on  the  third 
reading  of  a  bill  at  the  council  a  member  declared  there 
would  be  forty  thousand  pounds  available  '*  to  stop  the 
King's  approbation  in  England."  This  Bellomont  con- 
sidered "  so  abominable  a  reflection  on  the  Government 
of  England,  but  so  common  a  one  here,"  that  he  ven- 
tured to  suggest  that  their  lordships  should  "  put  all 
imaginable  discountenance  upon  it."  3  The  ministry 
and  vestry  of  St.  Paul's,  Philadelphia,  represented  to  the 
Board  that  an  assembly  of  Quakers  there  had  made  a 
law,  and  raised  money  *'on  us  as  well  as  themselves, 
part  [of  which]  goes  towards  interest  to  get  ye  said  Law 
approved." -♦  In  1723  Governor  Nicholson  of  South 
Carolina  wrote  the  Board  that  by  common  report  there, 
those  dissatisfied  with  his  majesty's  government  had 
raised  twenty-five  hundred  pounds  current  money  to 
secure  the  confirmation  of  a  paper  money  act.^  The  fee 
system  pervaded  all  branches  of  English  administration 

*  Kimball,  Correspondence  of  the  Govs,  of  R.  I.,  vol.  i,  pp.  55-6, 
Cited  by  Root,  p.  133. 

'  Penn-Logan,  Corresp.,  vol.  i,  pp.  297,  342.  Pa.  Col.  Recs.,  vol.  ii, 
P-  193,  Cited  by  Root,  p.  133. 

•CO/s-1041,  p.  260;  27  October  1698.  CO/5-1042,  p.  207;  15  May 
1699. 

*  CO/5-1263,  O,  77',  25  March  1706. 

*  CO/5-359,  B,  30;  12  November  1723. 


639]  THE  RESULTS  OF  LEGISLATIVE  REVIEW  22 1 

and  it  could  hardly  be  expected  that  colonial  affairs 
would  be  favored  by  special  exemption.  But  it  is  safe  to 
say  that  the  expense  involved  irritated  the  colonists  and 
contributed  materially  to  their  dislike  for  the  English 
control  over  legislation/ 

Of  8,563  acts  submitted  by  the  continental  colonies, 
469  or  5.5  per  cent,  were  disallowed  by  orders  in  coun- 
cil. By  colonies  the  percentages  of  laws  disallowed  are : 
New  Hampshire,  7.2  per  cent.;  Massachusetts,  2.8  per 
cent.;  New  York,  3.4  per  cent.;  New  Jersey,  4.5  per 
cent.;  Pennsylvania,  15.5  per  cent.;  Virginia,  4.3  per 
cent.;  North  Carolina,  8.8  per  cent.;  South  Carolina,  4.9 
per  cent.,  and  Georgia,  9.4  per  cent.""  Letters  from  the 
governors  and  occasional  protests  from  the  assemblies 
reveal  the  existence  of  restiveness  and  resentment  result- 
ing from  the  loss  of  popular  acts.  Governor  Dudley 
speaks  of  a  "  riot  of  about  twenty  young  persons  in 
Hampton,"  New  Hampshire,  which  was  occasioned  by 
the  disallowance  of  two  laws  regarding  land  grants.^     St. 

1  Chalmers,  Opinions,  states,  on  p.  8,  that  "the  Law  Officers  were 
each  allowed  a  standing  fee  of  100  guineas,  with  10  guineas  to  each 
of  the  Clerks."  This  statement,  of  course,  applied  to  the  attorney  and 
solicitor,  not  to  the  king's  counsel.  Even  by  the  former  such  fees 
could  hardly  have  been  obtained  except  upon  large  collections  of  laws. 

'This  count  begins  with  the  New  Hampshire  laws  enacted  in  1699, 
with  those  passed  by  Massachusetts  in  1692,  under  the  new  charter, 
those  of  New  York  enacted  in  1691,  of  New  Jersey  in  1703,  of  Virginia 
in  1676,  of  North  Carolina  in  1734,  of  South  Carolina  in  1721,  and  of 
Georgia  in  1755.  Because  of  confusion  and  frequent  re-enactments  it 
does  not  include  laws  passed  in  Pennsylvania  prior  to  1700.  Neither 
does  it  include  the  laws  submitted  by  Maryland  between  1691  and  1715, 
while  it  was  a  royal  province.  The  result  was  obtained  by  checking 
laws  enacted  and  noted  as  repealed  in  various  editions  of  colonial  laws, 
against  those  mentioned  in  the  Board  of  Trade  papers  as  submitted 
and  annulled  in  England.  Numerous  discrepancies  preclude  perfect 
exactitude,  and  the  figures  are  only  approximately  correct. 

*  CO/5-911,  p.  434;  10  October  1704. 


222  REVIEW  OF  COLONIAL  LEGISLATION  [640 

John,  a  surveyor,  was  imprisoned  by  the  assembly  of 
South  Carolina,  the  Board  found  reason  to  believe,  solely 
because  of  the  part  he  had  taken  in  securing  the  repeal 
of  a  quit  rent  bill.'  In  Pennsylvania  much  confusion  re- 
sulted from  the  repeated  annulment,  for  reasons  which 
seem  scarcely  adequate,  of  laws  establishing  courts.  The 
disallowance  of  a  Massachusetts  bankruptcy  law  which 
left  numerous  insolvents  without  relief  for  some  years, 
and  the  repeal  of  a  scheme  for  establishing  a  land  bank 
in  the  same  colony,  appear  to  have  caused  considerable 
inconvenience  and  suffering.  Because  of  the  Board's  for- 
bearance there  were,  however,  very  few  cases  in  which 
disallowance  brought  loss  of  property  to  individuals. 
Rather  than  inflict  undeserved  hardship  upon  taxpayers, 
subscribers  to  lotteries,  or  holders  of  paper  currency, 
the  Board  left  many  objectionable  acts  in  force  and 
contented  itself  by  instructing  the  governors  to  procure 
their  amendment  or  repeal  from  the  assembly. 

In  addition  to  injury  entailed  by  actual  disallowance, 
the  colonists  suffered  from  the  uncertainty  and  delay  in- 
volved in  the  submission  of  legislation  to  the  Privy 
Council.  The  average  time  between  the  enactment  of 
four  hundred  and  thirty-seven  laws  and  their  repeal  in 
England  was  approximately  three  years  and  five  months. 
Of  these,  ten  per  cent,  were  disallowed  during  the  first 
year  after  their  enactment,  thirty-one  per  cent,  during 
the  second  year,  twelve  per  cent,  during  the  third  year, 
and  twelve  per  cent,  during  the  fourth  year,  while  thirty- 
five  per  cent,  had  been  in  force  more  than  four  years.' 

*  CO/5-401,  p.  63;  7  June  1733- 

'  From  one  to  three  additional  months  were  required  for  the  orders 
in  council  to  reach  the  colony.  These  laws  include  nearly  all  of  those 
repealed  from  N.  H.,  Mass.,  N.  Y.,  N.  J.,  Pa.,  Va.,  N.  Car.,  S.  Car.,  and 
Ga.    The  fact  that  a  few  were  disallowed  many  years  after  enactment 


641]         THE  RESULTS  OF  LEGISLATIVE  REVIEW  223 

An  act  of  Virginia,  which  forbade  the  importation  of 
tobacco  from  North  CaroHna  was  suddenly  disallowed  in 
1 73 1,  twenty-six  years  after  its  enactment;  while  a  South 
Carolina  law  for  "  Easing  Port  Charges  "  was  repealed 
in  1755  after  having  been  in  force  seventeen  years.' 
Governors  sometimes,  though  rarely,  complained  that 
they  had  not  been  informed  of  the  reasons  for  disallow- 
ance and  were  consequently  at  a  loss  how  to  proceed 
when  the  law  was  re-enacted  by  the  assembly. "* 

A  more  common  cause  of  vexatious  uncertainty  lay  in 
the  government's  failure  to  act  upon  laws  containing  a 
suspending  clause.  New  Hampshire  submitted  a  trien- 
nial law  in  1724,  the  enforcement  of  which  was  suspended 
until  1 73 1.  Failing  to  obtain  either  its  rejection  or  con- 
firmation, a  second  law  was  passed  in  1728,  which 
escaped  notice  and  remained  in  force  until  1752.3  The 
assembly  of  Georgia  sought  to  justify  an  issue  of  paper 
currency  under  an  act  containing  a  suspending  clause 
because  of  urgent  necessity,  and  the  fact  that  the  colony 
had  been  in  doubt  of  the  law's  fate  for  nearly  three  years/ 
In  1764  the  Virginia  assembly  refused  to  pass  a  sus- 
pended law  to  "  Preserve  the  Breed  of  Cattle "  from  a 
prevailing  distemper,  upon  the  ground  that  the  damage 
would  be  done  before  his  majesty's  pleasure  could  be 
known.     Fourteen  months  later  the  Board  gave  the  gov- 

and  that  others,  especially  those  of  Pennsylvania,  were  sometimes  de- 
layed in  transmission,  renders  such  an  average  unsatisfactory  as  a  basis 
for  criticism  of  the  government. 

» A.  P,  C,  vol.  iii,  p.  345- 

'  Montgomerie  to  the  Board,  CO/5-1054,  Dd,  83 ;  30  November  1728. 
Johnson  to  Board,  B.  T.  J.,  vol.  xlvii,  p.  i,  pt.  ii.  B.  T.  /.,  vol.  xlix, 
p.  92;  12  August  1 741. 

'CO/5-870,  Z,  42,  Z,  59.  CO/5-941,  p.  279;  9  July  1752.  CO/5-926, 
B,  37. 

*  Ellis  to  the  Board,  CO/5-676,  C,  63;  24  April  1759. 


224  REVIEW  OF  COLONIAL  LEGISLATION  [642 

ernor  permission  to  assent,  if  the  necessity  for  it  still 
existed,  complimenting  him  at  the  same  time  upon  his 
firm  and  proper  regard  for  his  majesty's  instructions/ 
The  fact  that  the  colonists  could  have  obtained  reason- 
ably   prompt    action    upon    suspended    laws,    had    they 
always  maintained  capable  agents  in  England  and  kept 
them  well  supplied  with  money,  did  not  lessen  a  sense  of 
irritation   and   unjust  restraint.     Perhaps   no   grievance 
stated  in  the  Declaration  of  Independence  had  greater 
basis  of  fact  than  the  assertion  that  the  king  had  "for- 
bidden his    governors  to  pass  Laws  of   immediate  and 
pressing  importance,  unless  suspended  in  their  operation 
till  his  assent  should  be  obtained ;  and  when  so  suspended 
he  has  utterly  neglected  to  attend  to  them." 
'    The  colonists  sought  half-consciously  to  possess  a  field  of 
legislation  removed  from  imperial  concerns,  within  which 
they  might  pass  laws  with  a  minimum  of  interference 
ftrom  the  British  government.     The  Board  of  Trade  ap- 
[  pears  to  have  recognized  both  the  existence  and  the  jus- 
ftice  of   this  desire,  and   to  have   been   somewhat   more 
I  lenient  towards  laws  purely  of  domestic  import.     Despite 
\  defective  wording  or  doubtful  expediency  many  acts  were 
I  left  in  force  because  they  related  "  only  to  the  private 
[  economy   of   the  Province "    or  were   "  merely  of  local 
1  operation,"  having  reference  "to  points  of  internal  police 
land    economy."''     In    refusing   a   request    from    several 
Massachusetts  towns  for  the  disallowance  of  an  unpopular 
excise  law,  the  Board  stated  that  "  upon  the  whole  the 
mode  of  Levying  Taxes  is  a  matter  of  Provincial  Oecon- 
omy,  of  which  the  Representatives  of  the  People  are  the 

»  CO/s-1330,  p.  31.    CO/5-13^,  p.  25s;  IS  February  1765. 
2  A.  P.  C,  vol.  iv,  p.  104.    A.  P.  C,  vol.  iv,  p.  97.    Pa,  Stats.,  vol  vii, 
p.  769. 


643]  7'//ii  RESULTS  OF  LEGISLATIVE  REVIEW  225 

Competent  Judges."'  But  the  forbearance  of  the  gov- 
ernment in  this  respect  amounted  in  truth  to  Httle.  As 
a  principle  of  exemption  it  was  never  formulated  in  gen- 
eral terms.  The  requirements  that  laws  be  conformable 
to  those  of  England,  and  not  injurious  to  the  prerogative 
of  the  crown,  caused  the  repeal  of  acts  upon  all  subjects; 
while  the  mere  fact  that  they  promised  to  result  in  injury 
to  the  colonists  themselves  proved  fatal  to  many  laws 
which  were  purely  local  in  scope.  It  was,  for  example, 
scarcely  a  matter  of  imperial  concern  that  the  assembly  of 
Pennsylvania  chose  to  prohibit  "  stage  plays,"  *  that  the 
lawmakers  of  West  Florida  made  too  generous  a  provi- 
sion for  their  own  salaries, ^  or  that  Virginia  should  re- 
peal without  a  suspending  clause  an  act  which  impow- 
ered  the  justices  of  Norfolk  County  to  establish  certain 
ferries. '^  It  was  doubtless  for  the  best  interests  of  Bruton 
Parish  in  Virginia  that  the  vestry  should  be  restrained 
from  lending  the  proceeds  of  glebe  lands  upon  personal 
security.^  But,  upon  the  whole,  the  colonists  would 
certainly  have  preferred  a  greater  freedom  to  suffer  the 
results  of  their  own  mistakes  without  interference  from 
the  English  government. 

More  important  than  annoying  delays  and  needless 
interference  in  domestic  affairs  was  a  realm  of  conflicting 
interests  wherein  the  natural  efforts  of  the  colonies 
toward  economic  and  political  self-development  were 
sacrificed  to  the  dictates  of  imperial  policy.  The  charge 
of  the  Declaration  that  the  king  had  "  refused  his  Assent 
to  Laws,  the  most  wholesome  and  necessary  for  the  pub- 

*  A.  P.  C,  vol.  iv,  p.  295;  12  August  1755-    CO/5-918,  p.  312. 
-Stats.,  vol.  V,  p.  721 ;  24  July,  1760. 
'  A.  P.  C,  vol.  V,  p.  158;  12  August  1758. 
*A.  P.  C,  vol.  V,  p.  164;  12  August  1768. 
^  A.  P.  C,  vol.  iv,  p.  684;  20  July  1764. 


226  REVIEW  OF  COLONIAL  LEGISLATION  [644 

lie  good,"  might  well  refer  to  the  repeated  disallowance 
of  acts  laying  prohibitory  duties  upon  the  importation  of 
slaves  or  the  transportation  of  convicted  felons.  The 
government  did  in  fact  "  obstruct  laws  for  the  naturali- 
zation of  foreigners,"  and  with  less  truth  "  refuse  to  pass 
others  to  encourage  their  migration  thither."'  It  re- 
strained the  colonies,  not  altogether  unwisely,  it  is  true, 
in  their  efforts  to  provide  a  necessary  medium  of  com- 
mercial exchange  and  to  lighten  the  burdens  of  debtors. 
Its  control  over  legislation  acted  as  a  strong,  if  not  an 
entirely  effective,  curb  upon  the  growing  power  and 
influence  of  the  popular  branch  of  the  colonial  legisla- 
tures. By  means  of  it  the  government,  in  defence  of  the 
prerogative,  interfered  to  prevent  further  increase  in  the 
membership  of  the  assemblies,  and  to  curtail  their  power 
to  repeal  or  amend  laws  of  their  own  making.  It  pre- 
vented the  assemblies  from  exercising  what  they  assumed 
to  be  their  rightful  privilege — a  control  over  appropria- 
tions equal  to  that  enjoyed  by  the  Commons  in  England. 
And  it  defeated  a  popular  desire  for  local  courts  of 
record  whose  judges  should  hold  ofiBce,  as  in  England, 
for  good  behavior  rather  than  at  the  pleasure  of  the 
crown.  If  we  grant  the  government's  premise  that  the 
economic  development  of  the  colonies  was  necessarily 
subordinate  to  the  maintenance  of  a  balance  of  trade  in 
favor  of  England,  and  to  the  advancement  of  the  com- 
mercial interests  of  a  self-sustaining  empire;  and  that 
political  innovations  must  in  no  way  impair  the  power 
or  prestige  of  the  crown,  there  is  little  of  which  to  com- 
plain in  the  policy  pursued  by  the  government  toward 
colonial   legislation.     But   the   colonists,  although    they 

*  Georgia  law  for  "Encouraging  Settlers,"  A.  P.  C,  vol.  v,  p.  112; 
26  August  1767. 


645]  ^^^  RESULTS  OF  LEGISLATIVE  REVIEW  227 

long  acquiesced  in  a  rather  liberal  application  of  these 
precepts,  never  consciously  subscribed  to  them ;  and  ill- 
considered  attempts  to  secure  their  enforcement  con- 
tributed largely  to  the  final  breach  between  the  colonies 
and  the  mother  country. 

Strictly  speaking,  the  disallowance  of  colonial  legisla- 
tion by  the  Privy  Council  was  not  a  repeal,  because  the 
assemblies  took  no  part  in  the  process  of  declaring  laws 
invalid.  Nor  was  it  a  veto,  because  legislation  became 
effective  from  the  time  of  its  enactment,  and  acts  per- 
formed in  accordance  with  its  provisions  prior  to  annul- 
ment by  order  in  council  remained  valid.  The  power  of 
review  exercised  by  the  Privy  Council  was  analogous 
rather  to  that  assumed  by  the  Supreme  Court  of  the 
United  States  after  the  formation  of  the  new  govern- 
ment. The  Privy  Council,  it  is  true,  declared  acts  void 
upon  grounds  other  than  the  contravention  of  a  funda- 
mental law;  but  it  frequently  did  disallow  laws  because 
they  conflicted  with  the  colonial  charters,  or  with  acts  of 
the  British  Parliament  or  the  common  law  of  England.' 
Under  its  tutelage  the  colonists  became  accustomed  to 
a  limitation  upon  the  power  of  their  legislatures.  In 
this  sense  the  work  of  the  Privy  Council  constituted  at 
once  a  precedent  and  a  preparation  for  the  power  of 
judicial  annulment  upon  constitutional  grounds  now  ex- 
ercised by  the  state  and  federal  courts  in  the  United 
States. 

^^''iht.  act  of  Parliament  passed  in  1696  for  "preventing  frauds,  and 
regulating  abuses  in  the  plantation  trade,"  asserted  the  nullity  of  any- 
colonial  law  or  usage  which  should  be  repugnant  to  acts  of  Parliament 
referring  to  the  colonies.  Statutes  at  Large,  7  and  8  William  III, 
ch.  xxii. 


VITA 


Elmer  Beecher  Russell  was  born  in  Burlington, 
Vermont,  in  1885.  He  graduated  from  the  Burlington 
High  School  in  1902,  and  received  the  degree  of  Bachelor 
of  Philosophy  from  the  University  of  Vermont  in  1906. 
He  was  a  student  in  Harvard  Law  School  during  the 
year  1 906-1907,  and  a  member  of  Professor  Turner's 
seminar  at  the  University  of  Wisconsin  in  the  summer 
of  1909.  Mr.  Russell  was  in  residence  at  Columbia 
University  from  September,  1910,  until  June,  1912. 
Here  he  attended  the  seminars  of  Professor  Herbert  L. 
Osgood  and  Professor  William  A.  Dunning,  and  courses 
under  Professors  Osgood,  Dunning,  Beard,  Shepherd, 
Robinson,  Shotwell,  and  Seligman.  He  was  instructor 
of  mathematics  in  New  Orleans  University  (New 
Orleans,  La.)  during  1908-1909,  and  instructor  in  the 
Burlington  (Vermont)  High  School  during  the  year 
following. 

229 


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